Jharkhand High Court

Md. Sanjeeb A. Ansari @ Dr. Sanjeet ... vs The State Of Jharkhand on 21 March, 2023

                                   1                       [Cr.M.P. No.2002 of 2012
                                                           Cr.M.P. No.624 of 2013
                                                           Cr.M.P. No.1813 of 2013]




      IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 2002 of 2012

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Md. Sanjeeb A. Ansari @ Dr. Sanjeet A. Ansari, son of Md. Gulam Rabbani, Sanjeevani Seva Sadan Prasuti Kendra, Digwadih No.12, P.O. Jealgora, P.S. Jorapokhar, District-Dhanbad resident of Ramjanpur, Jamadoba, P.O. Bhaga, P.S. Jorapokhar, District-Dhanbad (Accused in C.O.Case No.42/12) ... Petitioner

-- Versus --

1.The State of Jharkhand

2.Dr. Sashi Bhushan Prasad, son of late Satya Narayan Prasad Singh, Civil Surgeon-cum-Chief Medical Officer, Dhanbad, P.O., P.S. and District - Dhanbad (Complaint in C.O.Case No.42/12) .... Opposite Parties With Cr.M.P. No. 1813 of 2013 Ashok Saw @ Ashok Kumar Saw, son of Bansropan Saw, resident of Village- Mahulbani (Near Durga Mandir), P.O. Bhawra, P.S. -Sudamdih, District- Dhanbad ... Petitioner

-- Versus ---

1.The State of Jharkhand

2.Shashi Bhusan Singh, son of late Satya Narayan Prasad Singh, posted as Civil Surgeon-cum-Chief Medical Officer of the District and being appointed as Appropriate Authority under the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse), Act, 1994, Dhanbad, P.O., P.S. and District-Dhanbad .... Opposite Parties With Cr.M.P.No. 624 of 2013 Dr. Samiran Banerjee @ Samiran Banerjee, son of late R.N. Banerjee, Resident of Naya Bazar, P.O. and P.S. Bank More, District-Dhanbad .... Petitioner

---- Versus ----

1.The State of Jharkhand

Cr.M.P. No.624 of 2013 Cr.M.P. No.1813 of 2013]

P.O., P.S. and District-Dhanbad ..... Opposite Parties.

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Rajesh Kumar, Advocate Mr. Manindra Kumar Sinha, Advocate Mr. Amit Kumar, Advocate [Cr.M.P.No.2002 of 2012] Ms. Anushka Sharma, Advocate [Cr.M.P.No.1813 of 2013] Mr. Kalyan Banerjee, Advocate [Cr.M.P.No.624 of 2013]

For the State :- Mr. Prabhu Dayal Agarwal, Special P.P.

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11/21.03.2023 Heard Mr. Rajesh Kumar, Ms. Anushka Sharma, Mr. Kalyan

Banerjee, the learned counsels appearing on behalf of the petitioners in

the respective cases and Mr. Prabhu Dayal Agarwal, the learned Special

Public Prosecutor appearing on behalf of the respondent State.

In these petitions a common question of facts and law are

involved that is why all these petitions have been heard together with

consent of the parties.

In these petitions a prayer is made for quashing of the

order taking cognizance dated 22.08.2012 passed by the learned Chief

Judicial Magistrate, Dhanbad in C.O.Case No.42 of 2012 including the

entire criminal proceeding, pending in the court of Learned Judicial

Magistrate, 1st Class, Dhanbad.

The prosecution case in brief is that a complaint case has

been lodged by the O.P.No.2 alleging therein that in order to check the

declining sex ratio in the district by curbing the female Foeticide, the

complainant who was appointed as Appropriate Authority under the Act,

Cr.M.P. No.624 of 2013 Cr.M.P. No.1813 of 2013]

has conducted a survey and came to know that Clinilab Diagnostics &

Imaging Centre Pvt. Ltd., Bank More, Dhanbad is in existence and such

centre is registered with the Appropriate Authority and after verification

the complainant case to know USG machine is installed in the clinic and

the radiologist in service was Dr. Prashant Kumar, DMRD. Complainant

informed the S.P.Dhanbad regarding the case and requested to provide

details of the complaint. The victim Mrs. Kakoli Devi wife of Ashok Kumar

Saw resident of Niche Mohalbani, P.S. Sudamdih, Jharia, District

Dhanbad, who had given written complaint to the appropriate authority

regarding sex determination of the foetus was also contacted based on

the details provided by the police department. The victim was unaware of

the fact that she was being subjected to the ultrasonography at the

above said clinic for sex determination. The intention of the husband was

clear and confirmed only when her husband revealed the sex of the

foetus at the clinic after consultation with the doctor. The husband

cleverly convinced her to undergo sonography for foetal well being and

also tried to determine the sex of the baby in connivance with the

ultrasonologist of the clinic. The ultrasonologist Dr. Prashant Kumar,

DMRD revealed the sex of the foetus to the parents knowing that it was

violation of the law. It was further alleged that after the female sex of

the foetus was established, husband of Kakoli Devi started pressurizing

his wife to undergo abortion and he forcibly administered abortive pills to

Kakoli Devi, following while she developed pain in the abdomen and fell

ill, consequently she was admitted to local nursing home namely

Sanjeevani Sewa Sadan and Prasuti Kendra, Digwadih-10. The treating

doctor Sanjeeb A. Ansari, BAMS conducted the abortion without the

consent of the victim. The said nursing home is not registered by the

district registering authority under the MTP Act for conducting MTP.

Despite being non-registered, MTP was conducted for female feticide. In

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view of the violation of the provisions of the Act, the machine Logiq P3 is

sealed in its original place of installation in the ground floor/ basement of

the clinic and the machine still lies at the Clinilab Diagnostic Centre.

On the basis of the above allegations, the instant complaint

case was filed under section 28 of the Pre-Natal Diagnostic Techniques

(Regulation and Prevention of Misuse) Act, 1994 read with Rules 1996

and Sec. 200 of the Code of Criminal Procedure which was numbered as

C.O. Case No.42 of 2012. Pursuant to that, the complaint case has been

filed.

The learned court has taken cognizance under section 28 of

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex

Selection) Act, 1994 [hereinafter to be referred to as „the Act of 1994‟].

Ms. Anushka Sharma, the learned counsel appearing in

Cr.M.P.No.1813 of 2013 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 her, even

search and seizure power is with the appropriate authority in light of

section 30 of the Act, 1994. She further advances her 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. The learned counsels

appearing for the petitioners jointly relied in the case of "Hukam Chand

Shyamlal v. Union of India and Ors"; AIR 1976 SC 789 and they

particularly relied on paragraph no.18 of the said judgment. According to

them, in light of this judgment of the Hon‟ble Supreme Court, the entire

criminal proceeding is bad in law. The learned counsels for the

petitioners jointly submits that earlier there was no notification with

regard to the authority in light of the provisions made in the said Act and

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recently the notification has been published on official gazette on

04.08.2022. On these grounds, they submits that entire criminal

proceeding is bad in law and the same will not survive in the eyes of law.

Mr. Agrawal, the learned State counsel submits that

identical was the situation in the case of "Dr. Kumari Seema @ Dr.

Seema Modi @ Dr. Seema" [Cr.M.P. No. 3655 of 2019] which was decided

by order dated 11.10.2022 and in paragraph no.5 it has been observed

which is quoted hereinbelow:

"5. On the other hand, Mr. Prabhu Dayal Agrawal, learned Special Public Prosecutor appearing on behalf of the State on instruction submits that the Deputy Commissioner, Koderma has made communication to him and he has provided letter dated 06.06.2012 with regard to appointment of appropriate authority for lodging the case under the Act, 1994. Apart from that, he has not received any further instruction. He further submits that the notification dated 04.08.2022 has been published on official gazette. On this ground, he submits that this petition is fit to be dismissed. "

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 Dr.

Shashi Bhushan Prasad. 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

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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."

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 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 WelfareChairperson;

(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;

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(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 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 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

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prescribed."

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 as has been held in Cr.M.P. No.3655 of 2019 and 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 v. Gordhandas Bhanj"; AIR 1952 SC 16.