Sr. Laila Sra vs The State Of Jharkhand
2022 Latest Caselaw 4138 Jhar

                                       -1-            Cr.M.P. No. 144 of 2019

       IN       THE HIGH COURT OF JHARKHAND AT RANCHI
                              Cr.M.P. No. 144 of 2019
      1. Sr. Laila SRA
      2. Sr. Glory @ Sr. Glory Ekka                   .....  ... Petitioners
                                   Versus
      1. The State of Jharkhand.
      2. Sheo Shankar Harijan, District Appropriate Authority
        (PC & PNDT) and Civil Surgeon-cum-Chief Medical
        Officer-Occupation Service, Ranchi.            ..... ...    Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners : Mr. Amit Kumar Das, Advocate. For the State : Mr. Suraj Deo Munda, A.P.P.

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05/ 12.10.2022 Heard Mr. Amit Kumar Das, learned counsel appearing for the petitioners and Mr. Suraj Deo Munda, learned A.P.P. appearing for the State.

2. This criminal miscellaneous petition has been filed for quashing of the entire criminal proceeding in Complaint Case No. 4045 of 2017, including the order of taking cognizance dated 23.07.2018, whereby cognizance under Section 23(1)(3) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection), Act, 1994 [hereinafter referred to as the 'Act'] has been taken against the petitioners, pending in the court of learned Additional Chief Judicial Magistrate, Ranchi.

3. The O.P. No. 2 filed the complaint case stating therein that he is designated authority under Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection), Act, 1994 and a complaint was made by one Mr. Pranav Kumar Babbu, Advocate on 05.05.2017 before the Deputy Commissioner, Ranchi, on the basis of which the Circle Officer, Chanho visited the hospital on 12.05.2017 to see irregularity and found that the Hospital is performing Ultrasound activities without registration under the Act and sealed and seized the documents found in the USG Room and sent a report to the Civil Surgeon's Office, Ranchi vide letter No.209 dated 12.05.2017 to take appropriate action alleging violation of provisions of the said Act. The complainant on seeing the said report organized a meeting of advisory committee on 31.05.2017 and on the basis of the decision, an inspection was made on 02.06.2017 by a committee comprising of Dr. Sunita Jha, Dr. Sunita Mishra, Dr. Sudakshna Lala, Dr. Neelam Choudhary and Sachchidanand Prasad. The registration certificate being No.337/17 under the Act was issued on 24.04.2017, but it is alleged that without awaiting the registration certificate from the office of the Civil Surgeon, Ranchi, the Hospital was performing Ultrasound

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activities in the hospital and thereafter when during an inspection by the Circle Officer, Chanho on 12.05.2017, the demand of registration certificate was made, the owner of the Hospital failed to produce the same and on 13.05.2017, the owner of the Hospital came to the Office of the Civil Surgeon, Ranchi and obtained the certificate. As such, it is alleged that there is a violation of Section 18 of the Act. On 02.06.2017 when an inspection was carried on, again demanded copy of Form-F which the Hospital staff was unable to present. It is further stated on scrutiny of Form-F which was given by the Circle Officer, same was found to be incomplete as Column No.10 was not ticked properly and the said Form-F was maintained by Dr. Baila Ekka and this was not signed by the Doctor performing Ultrasound activities, which is in violation of Rule 9(4) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996.

It has been further stated that there was no display board in English mentioning that disclosure of sex of fetus is prohibited under law.

It has been further stated that the Act Book was not available in the premises.

It has been further stated that there was two OPD register having patient's name only and date and other details of the patients have not being aggrieved by the said order filled up and the said register did not bear page number and date started from 01.04.2016 to 31.03.2017 and 01.04.2017 to 01.06.2017 which is incomplete. No referral slip is mentioned for ultrasound on pregnant women, which is in violation of Rule 9(1) of the said Rules 1996.

During inspection on 12.05.2017, it is stated that the complainant found three USG report of pregnant women, but on demand of Form-F by the inspecting team, Hospital staff were unable to present the same.

Inspecting team found that educational certificates of Indu Bhushan Kumar but when asked the Hospital staff, who is performing USG and in whose name Form-A the registration of Hospital was applied under the Act, they replied that it is Dr. Sweta Narayan and the inspection report of the Circle Officer enclosed educational qualification of Dr. Sweta Narain.

It is further stated that when the news regarding the said inspection was published, Dr. Sweta Narayan sent a letter to the Civil Surgeon, Ranchi mentioning that she is innocent and does not know

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how her educational certificates were given to Preriton Ki Rani Hospital, Chanho, however, on further inspection, it was confirmed by the lawyer concerned, who notorized the affidavit that the same bore signature of Dr. Sweta Narayan.

4. Mr. Amit Kumar Das, learned counsel appearing for the petitioners submits that the petitioner No. 1 is the Director of the hospital in question and petitioner No. 2 is the religious sister of the concerned hospital Preriton Ki Ranhi, Chanho. He submits that the hospital in question has not been made party in the complaint, however, petitioners have been made accused in the case. Learned counsel appearing for the petitioners submits that in light of Section 28 of the Act, 1994, appropriate authority is required to file the case and the same person is also authorized to enquire into the matter, which is in terms of Sub-section (4) of Section 17 of the Act, 1994. According to him, even search and seizure power is with the appropriate authority in light of section 30 of the Act, 1994. He further advances his argument by way of submitting that in a special statute, there is requirement to follow certain thing which is required to be done in light of special statute, which has not been done in the case in hand. To buttress his argument, he relied upon the Full Bench judgment of Hon'ble Supreme Court in Hukam Chand Shyamlal v. Union of India and Ors.; AIR 1976 SC 789 and he particularly relied on paragraph no.18 of the said judgment. He further elaborates his argument by way of submitting that for the same offence one FIR is lodged and trial has proceeded however the complaint is filed only to rectify the first case and the requirement of statute has not been followed. He submits that this aspect of the matter has been considered by the Hon'ble Supreme Court in Commissioner of Police, Bombay v. Gordhandas Bhanj; AIR 1952 SC

16. He further elaborates his argument by way of submitting that earlier there was no notification with regard to the authority in light of the provisions made in the said Act and recently the notification has been published on official gazette on 04.08.2022. On these grounds, he submits that entire criminal proceeding is bad in law and the same will not survive in the eyes of law.

5. Mr. Suraj Deo Munda, learned A.P.P. appearing for the State on instruction submits that there is no illegality in the impugned order.

6. The identical issue was considered by this Court in Cr.M.P. No. 3655 of 2019, which was decided on 11.10.2022. However, learned A.P.P. for the State is not in a position to distinguish that judgment, delivered by this Court that the case of the present petitioners is covered

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by the judgment passed in Cr.M.P. No. 3655 of 2019 or not.

7. In view of the above submissions of the learned counsel appearing for the parties, the Court has gone through the materials on the record. Admittedly, the complaint case has been filed by one Sheo Shankar Harijan. In the complaint petition, notification or authorization is not annexed. Section 28 of the Act, 1994 speaks of cognizance of offences, which 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 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."

8. Section 2(a) of the Act, 1994 provides that the appropriate authority means the appropriate authority appointed under Section 17 of the Act, 1994. Section 17(2) of the Act, 1994 provides that the appointment shall be made by notification in the official gazette. Section 17 of the Act, 1994 reads as under:

"17. Appropriate Authority and Advisory Committee.-

(1) The Central Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for each of the Union territories for the purposes of this Act.

(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

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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 sub-section (1) or subsection (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

(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 Prevention of Misuse) Amendment Act, 2002:

Provided further that any vacancy occurring therein shall be filled within three months of that 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.

(4) The Appropriate Authority shall have the following functions, namely:-

(a) To grant, suspend or cancel registration of a Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic;

(b) To enforce standards prescribed for the Genetic Counselling Centre, Genetic Laboratory and Genetic Clinic;

(c) To investigate complaints of breach of the provisions of this Act or the rules made thereunder and take immediate action;

(d) To seek and consider the advice of the Advisory Committee, constituted under sub- section (5), on application for registration and on complaints for suspension or cancellation of registration;

(e) To take appropriate legal action against the use of any sex selection technique by any person at any place, suomotu or brought to its

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notice and also to initiate independent investigations in such matter;

(f) To create public awareness against the practice of sex selection or prenatal determination of sex;

(g) To supervise the implementation of the provisions of the Act and rules;

(h) To recommend to the CSB and State Boards modifications required in the rules in accordance with changes in technology or social conditions;

(i) To take action on the recommendations of the Advisory Committee made after investigation of complaint for suspension or cancellation of registration.

(5) The Central Government or the State Government, as the case may be, shall constitute an Advisory Committee for each Appropriate Authority to aid and advise the Appropriate Authority in the discharge of its functions, and shall appoint one of the members of the Advisory Committee to be its Chairman.

(6) The Advisory Committee shall consist of--

(a) Three medical experts from amongst gynaecologists, obstetricians, paediatricians and medical geneticists;

(b) One legal expert;

(c) One officer to represent the department dealing with information and publicity of the State Government or the Union territory, as the case may be;

(d) three eminent social workers of whom not less than one shall be from amongst representatives of women's organisations.

(7) No person who has been associated with the use or promotion of pre-natal diagnostic technique for determination of sex or sex selection shall be appointed as a member of the Advisory Committee.

(8) The Advisory Committee may meet as and when it thinks fit or on the request of the Appropriate Authority for consideration of any application for registration or any complaint for suspension or cancellation of registration and to give advice thereon: Provided that the period intervening between any two meetings shall not exceed the prescribed period.

(9) The terms and conditions subject to

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which a person may be appointed to the Advisory Committee and the procedure to be followed by such Committee in the discharge of its functions shall be such as may be prescribed."

9. Admittedly, in light of Section 28, 2(a) and 17 of the Act, 1994, prescribed procedure is not followed in filing the case against the petitioners. There was no notification at the time of filing of the complaint case. The notification has been recently published in official gazette on 04.08.2022. Section 28 of the Act, 1994 speaks that no court shall take cognizance unless it is filed by the appropriate authority. If the power is vested in particular authority, that authority is required to file the case, as has been held by the Hon'ble Supreme Court in Commissioner of Police, Bombay (supra).

10. In para-9 of the Cr.M.P. No. 3655 of 2019, it is observed as under:-

"9. The entire case of the State raised upon the communication dated 06.06.2012, which has been received by Mr. Agarwal, learned counsel appearing on behalf of the State, which has been transmitted to the Court and the same is taken on record. The said letter has not been published in official gazette and it was not published earlier in official gazette and that will be enforced only on 04.08.2022, the date on which the notification has been published in official gazette and that notification has got no retrospective force."

11. In view of the aforesaid facts, reasons and analysis and considering that appropriate authority constituted by the State Government or the Central Government has not filed the case, the entire proceeding is vitiated. Accordingly, the prayer made in the petition is allowed. The entire criminal proceeding in Complaint Case No. 4045 of 2017, including the order of taking cognizance dated 23.07.2018, whereby cognizance under Section 23(1)(3) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection), Act, 1994 has been taken against the petitioners, pending in the court of learned Additional Chief Judicial Magistrate, Ranchi, are hereby, quashed.

12. In view of the above terms, this petition stands disposed of.

13. Interim order dated 24.09.2019 is vacated.

14. Pending I.A., if any, stands disposed of.

(Sanjay Kumar Dwivedi, J.) Amitesh/-