Jharkhand High Court

Dr. Kusum Prasad vs The State Of Jharkhand on 11 October, 2023

   IN THE HIGH COURT OF JHARKHAND AT RANCHI
           Criminal Revision No. 1495 of 2022
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(Against the order dated 28.11.2022 passed by the learned Addl. Chief Judicial Magistrate, Ranci in Complaint Case No. 6046 of 2019)

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1. Dr. Kusum Prasad
2. Poonam Pandey
3. Rabindra Kumar Singh
4. Saloni Tudu              ...        ...        ...Petitioners
                     -Versus-
1. The State of Jharkhand

2. State represented through Dr. Vijay Bihari Prasad ... ... ...Opp. Parties

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PRESENT HON'BLE MR. JUSTICE SUBHASH CHAND

For the Petitioner : Mr. A.K.Das, Advocate For the State : Mrs.Vandana Bharti, A.P.P.

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C.A.V. on 31.08.2023 : Pronounced on 11.10.2023

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The instant Cr. Revision is against the order dated

28.11.2022 passed by the learned Addl. Chief Judicial Magistrate,

Ranchi in Complaint Case No. 6046 of 2019 whereunder the

discharge application of the petitioners has been rejected.

2. The brief facts leading to this Cr. Revision are that the

Complaint was filed on behalf of State represented through Dr.

Vijay Bihari Prasad, Civil Surgeon cum Chief Medical Officer cum

Nodal Officer, PC & PNDT, Ranchi against Dr. Kusum Prasad, Dr.

Poonam Pandey, Sri Ravindra Kumar Singh, Staff/Incharge, Smt.

Saloni Tudu, Staff/Incharge of R. Jeevan Jyoti Nursing Home,

Upper Bazar, Maicky Road, Ranchi wherein the allegations are

made that the Complainant Dr. Vijay Bihari Prasad, Civil Surgeon

cum Chief Medical Officer, Ranchi is designated as authorized

representative District Appropriate Authority, Ranchi under PC &

PNDT Act, 1994 vide order No. 1308 dated 02.12.2019. The

National Inspection and Monitoring Committee (NIMC) visited

Ranchi on 20th September, 2019 for inspection of Ultrasound

Clinic, Nursing Home. On 20.09.2019 at 10:10 a.m. the National

Inspection and Monitoring Committee (NIMC) comprising therein

Dr. Sabu M George, Dr. Sudesh Doshi, Dr. Binod Rath and Mr.

Lakshay Malik along with Smt. Mary Markey (Executive

Magistrate, Ranchi), Authorized representative of District

Appropriate Authority PC & PNDT, Dr. Sudakshana Lala (State

Nodal Officer PC&PNDT), Mrs. Rafat Farzama (State PC & PNDT

Coordinator), Mr. Diwakar Kumar (State Monitoring and

evaluation Coordinator), and Dr. Vijay Bihari Prasad, Civil

Surgeon cum Chief Medical Officer, Ranchi had visited the

premises of R. Jeevan Jyoti Nursing Home, Upper Bazar, Maicky

Road, Ranchi.

3. Smt. Mary Markey, Executive Magistrate, Ranchi (the

Authorized representative of the District Appropriate Authority PC

& PNDT vide order No. 1055 dated 20.09.2019 for inspection of

the premises and NIMC had found following violations of PC&

PNDT Act, 1994 & PC & PNDT Rules, 1996 at R. Jeevan Jyoti

Nursing Home as under:

(a) ANC register-

In ANC register, total 21 entries were found in the month of

August 2019; but Form F's maintained in the clinic was only 20

for the August 2019 which is violation of Rule 9 & Sec 4(3) (V) of

the Act and also on offence U/s 312, 315 and 511 of I.P.C.

(b) Ultrasound Machine Data-

(b). i- On examining the data of the Ultrasound machine, it was

found that total 05 obsteric patients record and image were in the

Ultrasound machine of the patients. In ANC register only name of

patient Richa Arora was entered and rest of the names of the 4

patients were not shown, which is also violation of Rule 9 (1), (4)

& Section 4 (3) (V), 5 and 6 of the PC & PNDT Act and also an

offence U/s 312, 315 and 511 of I.P.C.

(b) ii. Similarly, on 14.09.2019 out of 8 obstetrics records the

images of the patients, namely, Sanjana, Khusboo, G. Kamya,

Khusboo, Sabita, Pratibha Kumari and Negaris were in

Ultrasound machine. But in Form F only Pratibha Kumari was

maintained and in ANC register only one entry of Pratibha Kumari

was dated 14.09.2019. No entry of the Form F of remaining 07

patients were found which is violation of Rule 9 (1), (4) & Sec 4(3)

(V) of the PC & PNDT Act and also an offence U/s 312, 315 and

511 of I.P.C.

(b) iii. On 11.08.2019 they found the total 10 obstetrics records

and images for the patients. But no Form F or no entry in ANC

of Rule 9 (1), (4) & Sec 4(3) (V), 5 & 6 of the PC & PNDT Act and

also an offence U/s 312, 315 and 511 of I.P.C.

(b). iv- In the month of September 2019, from 1st to 19th

September, there were total 67 obstetric case records with image

in the ultrasound machine but only 15 were entered in the Form

F. Moreover, on the scrutiny of Ultrasound machine data for

01.09.2019 was found obstetric record and images of 06 other

patients but no entry was of any patient in the Form F or ANC

and 6 of the PC & PNDT Act and also an offence U/s 312, 315 and

511 of I.P.C.

had been filled and with requisite details such as the name of

clinic, registration number, referral doctors name, performing

doctors name and signature and registration number with place.

However, the declaration of the doctor and signature and

registration number were filled therein. The performing doctor

should sign the Form F only after procedure is complete and

patient details are filled in all the forms. These 45 Forms were

photocopies including signatures, which is violation of Rule 9 (4)

& Sec 4(3) (V), 5 and 6 of the PC & PNDT Act.

(c). ii- On scrutinizing the Form Fs submitted to the District

Appropriate Authority for the month of March, it was found that

the photocopy were pre filled Forms as mentioned above which is

also in violation of Rule 9 (1), (4) & Sec 4(3) (V), 5 and 6 of the PC

& PNDT Act.

of September only 15 were found starting from 02.09.2019 and

the last was dated 19.09.2019.

4. That on the basis of the office report Poonam Pandey was

authorized to operate the Ultrasound machine at the Centre but

it was also observed that in emergency cases Dr. Kusum Prasad

was also operating the Ultrasound machine without giving any

prior permission to the District Appropriate Authority which is in

violation under Rule 13 of PC & PNDT Act, 1994.

5. That Poonam Pandey was doing the sex determination which

is prohibited under the law with the help of the staff of R. Jeevan

Nursing Home namely Sri Ravindra Kumar Singh and Smt. Saloni

Tudu. The same is in violation and punishable under Section 23

(1), (2) and (3) of PC & PNDT Act and Section 312, 315 and 511 of

I.P.C.

6. The patient report does not exhibit the name of the Doctor,

designation and signature, which was in violation of Rule 18 (ix)

of PC & PNDT Act.

7. At the time of inspection no name and designation was

mentioned on the dress of the Doctor who was operating

Ultrasound machine which was in violation of Rule 18 (viii) of PC

& PNDT Act.

8. On scrutinizing the hard copy of online filled Form Fs

submitted to District Appropriate Authority, it was observed that

the date of patient name mentioned in the ANC register for the

ultrasonography and the hard copy of old format of Form F is

different in the online Form F data uploaded in the online portal

of Garima Jharkhand website. The same is in violation of PC &

PNDT Act.

9. The gross irregularities, significant inconsistencies among

various records, data in Ultrasound machine, under reporting of

ultrasound procedures performed appeared to be deliberate. The

Executive Magistrate (Authorized representative of the District

Appropriate Authority PC & PNDT) Smt. Mary Markey had given

a show-cause notice to Dr. Kusum Prasad, the owner of R. Jeevan

Jyoti Nursing Home and the reply of the same was also sent by

Dr. Kusum Prasad was found not satisfactory.

10. The District Advisory Committee on 21.10.2019 upon the

show-cause reply of the owner of R. Jeevan Jyoti Nursing Home felt

being dissatisfied recommended the initiation of legal proceeding

under PC & PNDT Act. Accordingly, the complaint was filed with

the prayer to proceed against the accused persons for the offence

in violation of the provisions as contained in PC & PNDT Rules,

1996 and PC & PNDT Act, 1994 and to take cognizance under

Section 23(1), (2) and (3) of PC & PNDT Act, 1994 and 312, 315,

511 of I.P.C. and to punish them.

11. The discharge application was also filed on behalf of the

accused persons before the trial court, stating that no alleged

offence is made out against them. The learned lower court after

hearing the rival submission of learned Counsel for the accused

and the learned Counsel for the complainant passed the impugned

order dated 28.11.2022 rejecting the discharge application of the

petitioners-accused.

12. Aggrieved from the impugned order dated 28.11.2022 this

Cr. Revision is preferred on behalf of the petitioners/accused

basically on the ground that the complaint has not been filed by

the competent authority. In view of Section 28 of the PC & PNDT

Act, 1994 no court shall take the cognizance of the offence under

this Act except on a complaint made by the Appropriate Authority

concerned or an officer authorized in this behalf by the Central

Government or the State Government as the case may be, or the

appropriate authority. The another ground is also that unless and

until there is a gazette publication in respect of the appointment of

a person as an appropriate authority or an authorized officer no

complaint can be maintained by that officer. Until 04.10.2022 there

had been no gazette notification with respect to appointment of an

appropriate authority or authorized officer.

12.1 The learned court-below has failed to take into

consideration that the month of August, 2019 out of 21 patients

Form F was found to be duly filled up with respect to 20 patients

and one patient whose test could not be completed and final report

was never handed over and the Form was not filled up as because

the patient was again called but the patient did not report back.

With respect to September 2019 the due date for completion of

Form F and submission of return would have accrued only on

05.10.2019 but the inspection as made much before the due date

which cannot be basis for filing the complaint.

12.2 The learned lower court has not taken into consideration

that the O.P.No.2 was not authorized to institute the complaint

because there was no gazette notification to that effect. There was

no material before the court-below to frame the charge against the

petitioners. In view of the above prayed to allow this Cr. Revision

and to set aside the impugned order whereby the discharge

application was rejected.

13. I have heard the learned Counsel for the petitioner and

the learned A.P.P. on behalf of the State and perused the material

on record.

14. It is the settled law that while framing the charge or

disposing the discharge application of the accused, the court

concerned has to go through the allegations made in the F.I.R. or

in the complaint. In case of a complaint while going through the

allegations made therein the court concerned has to go through the

documentary evidence in support of the allegations made in the

complaint under Section 200 of Cr.P.C. and also an enquiry, if any,

made under Section 202 of Cr.P.C. as well and also the evidence

adduced on behalf of the complainant under Section 244 of Cr.P.C.

If from the allegations made in the complaint and the evidence

adduced on behalf of the complainant under Section 244 of Cr.P.C.

no alleged offence is made out and court is of definite opinion that

no ingredient of any offence is made out the court should not

decline the discharge application; but if from the allegations made

in the F.I.R. and evidence adduced in support thereof under Section

244 Cr.P.C., there is sufficient materials to proceed for trial, charge

may be framed.

15. The Section 200, 202 and 244 of Cr.P.C. are reproduced

hereunder:

Section 200. Examination of complaint.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192. Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. Section 202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, 98[ and shall, in a case where the accused is residing at a

place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made,-

(a) Where it appears to the Magistrate that the offence complained of its triable exclusively by the Court of Sessions; or

(b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.

Section 244. Evidence for prosecution.-(1) When, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.

There is sufficient material to proceed against the accused

persons the charge should be framed.

16. It is also the settled law that while framing the charge, the

court concerned cannot scrutinize the evidence on record and the

marshalling of evidence and appreciation of evidence is not

permissible. The court cannot conduct the mini trial at the time of

framing charge. Only the sufficient material is to be seen to proceed

against the accused persons, for the offence alleged to proceed with

trial.

16.1 The Hon'ble Apex Court held in Palwinder Singh vrs.

Balwinder singh (2008) 14 SCC 504:

13. Having heard the learned counsel for the parties, we are of the opinion that the High Court committed a serious error in passing the impugned judgment insofar as it entered into the realm of appreciation of evidence at the stage of the framing of the charges itself. The jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal Procedure is limited. Charges can also be framed

on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time. This aspect of the matter has been considered by this Court in State of Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] wherein it was held as under: (SCC p. 579, para 23) "23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case [Satish Mehra v. Delhi Admn., (1996) 9 SCC 766 : 1996 SCC (Cri) 1104] holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."

16.2 The Hon'ble Apex Court held in Sanghi Brothers (Indore)

Pvt. Ltd. vrs. Sanjay Choudhary & Ors. (2008) 10 SCC 681:

11. Sections 227, 239 and 245 deal with discharge from criminal charge. In State of Karnataka v. L. Muniswamy [(1977) 2 SCC 699 :

1977 SCC (Cri) 404] it was noted that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of offence by the accused. (underlined [Ed. : Herein italicised.] for emphasis) The court has to see while considering the question of framing the charge as to whether the material brought on record could reasonably connect the accused with the trial. Nothing more is required to be inquired into. (See Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia [(1989) 1 SCC 715 : 1989 SCC (Cri) 285] and State of W.B. v. Mohd. Khalid [(1995) 1 SCC 684 : 1995 SCC (Cri) 266] .)

16.3 The Hon'ble Apex Court also held in Rukmini Narvekar

vrs. Vijaya Satardekar & Ors. A.I.R.2009 SC 1013:

38. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom

under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] by the larger Bench therein to which the very same question had been referred

16.4 The Hon'ble Apex Court held in Central Bureau of

Investigation vrs. Mukesh Pravinchandra Shroff & Ors (2010)

3 SCC Cr. 315:

"The appreciation of evidence, at the stage of discharge is impermissible what is required is to be seen is whether there are sufficient grounds to proceed against accused."

17. The learned Counsel for the petitioners-revisionist has

submitted and hammered on the point that the complaint was not

filed by the competent authority who is authorized under Section

17 of PC & PNDT Act. Accordingly, the cognizance should not have

been taken by the court concerned under Section 28 of PC & PNDT

Act. The provisions of Section 17 and Section 28 of PC & PNDT

Act, 1994 are reproduced here-in-below:

17.1 Section 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 sub-section (2) shall be,- 24[(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 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.

(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; and

(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; 25[e] to take appropriate legal action against the use of any

sex selection technique by any person at any place, suo motu 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 pre-natal determination of sex;

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

(h) to recommend to the Board 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.

26[(7) No person who has been associated with the use or

promotion of pre-natal diagnostic techniques 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 prescribed.

17.2 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 authorized 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 32[fifteen days] in the manner prescribed, to the Appropriate Authority, of the alleged offfence and of his intention to make a complaint to the Court.

18. From the perusal of the impugned order passed by the

court-below, it is found that the court-below after having taken into

consideration the allegations made in the complaint and also the

evidence of C.W.1 to C.W.3 did not find the any of the ingredients

of the offence under Sections 312, 315, 511 of I.P.C. for framing the

charge against the accused persons. But the court-below had

found the sufficient evidence against the accused persons to

frame the charge under Section 23 read with Section 24 of PC

& PNDT Act. Relying upon the strong presumption regarding

pre-natal diagnostic test by the accused persons for not

maintaining the record in the prescribed format.

19. The learned Counsel for the petitioners/revisionist had

raised the first and foremost plea for discharge of the petitioners on

the grounds that the complainant is not the competent person to

file the complaint in view of Section 17 and the court concerned

was not empowered to take cognizance of the complaint under

section 23 of PC & PNDT Act, 1994.

20. From the very perusal of the impugned order, it is found

that the court concerned has not given any finding to this effect

while rejecting the discharge application of the petitioners.

21. From the bare perusal of the Section 17 (1), it is evident

that the Central Government shall appoint, by notification in the

Official Gazette, one or more Appropriate Authorities for each of the

Union territories for the purpose of this Act. Section 17(2) provides

that 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.

In view of Section 17(3) the officers appointed as Appropriate

Authorities under sub-section (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

(iii) an officer of Law Department of the State or the Union territory concerned:

In Section 17(4) the functions of Appropriate Authority have

been provided

Section 17(5) provides that 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.

Section 17(3) (b) also provides 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.

22. Section 28 (1) of PC & PNDT Act, 1994 provides that no

court shall take the cognizance of an offence under this Act except

on a complaint made by-

(a) the Appropriate Authority concerned, or any

officer authorized in this behalf by the Central

Government or State Government, as the case

may be, or the Appropriate Authority; or

22.1 From this very provision, it is evident that the complaint

can be filed either

(i) By the Appropriate Authority concerned

(ii) Any officer authorized by the Central Government or the State Government as the case may be

(iii) Any person authorized by the Appropriate Authority

23. In the instant Revision Petition the counter-affidavit has

been filed on behalf of the State. In para 27 of the counter-affidavit

it is mentioned that vide notification No.-9/RCH-623/17-13(HSN),

the Government of Jharkhand that under Section 17 (3) (b) of PC

& PNDT Act, 1994, nominate and appointed the Deputy

Commissioner as District Appropriate Authority and Deputy

Commissioner delegate his power to the Magistrate. Before the said

notification Civil Surgeon was the District Appropriate Authority

and after said notification of the year 2018 the Deputy

Commissioner has been appointed as a District Appropriate

Authority and he can file the complaint. In para 28 it is deposed

that admittedly a complaint should be filed by the Appropriate

Authority or any authorized officer can file in the present case. The

same procedure has been adopted. The Appropriate Authority has

been defined under Section 2(a) of the Authority Appointed under

Section 17 of the PC & PNDT Act, 1994.

24. Along with the counter-affidavit Annexures are being

made on behalf of the State. From the notification No.-9/RCH-

627/17-38(HSN) dated 02.04.2011 in view of Section 17(3) read

with (b) with part (a) empowered under PC & PNDT Act, 1994 Mary

Marki the Executive Magistrate, Sadar Ranchi was nominated for

execution of the powers given in PC & PNDT Act, 1994 on

20.09.2019 by the Commissioner cum District Level Appropriate

Officer, Ranchi (Annexure-B series page 20).

25. In the Annexure-B series at page 21 the Principal

Secretary, Health Medical Education and Family Welfare

Department, Jharkhand Ranchi notification No.

9/RCH&627/17-38 (HSN) dated 02.04.2011 in view of the

Section 17(3) read with (b) with part (a) exercising power under

PC & PNDT Act, 1994 Dr. Vijay Bihari Prasad Civil Surgeon cum

Nodal Officer, PC & PNDT was appointed to institute the

complaint against R. Jeevan Jyoti Nursing Home, Maik Road,

Upper Bazar under PC & PNDT Act. This order is dated

02.12.2019.

26. Herein it would be pertinent to mention that this plea

that the complaint was not lodged by the competent Authority was

not raised before the trial court concerned. Consequently, the trial

court concerned did not give any finding to this effect while passing

the impugned order.

27. In view of Section 23 the Complainant in the Compliant

Case No. 6046 of 2019 Dr. Vijay Bihari Prasad is the Authorized

Officer authorized as the competent Authority vide order dated

02.12.2019 in view of the notification No. 9/RCH-627/17-38(HSN)

dated 02.04.2011 issued by the Principal Secretary, Health Medical

Education and Family Welfare Department, Jharkhand Ranchi.

Therefore, the submissions made by the learned Counsel for the

petitioner that the complaint was not lodged by the competent

Authority is not found sustainable.

28. Certainly, the court-below has not given finding to this

effect while passing the impugned order because such record was

not available before the court concerned. These notifications are

annexed with the counter-affidavit on behalf of the State in this Cr.

Revision.

29. Now the so far as the allegations made in the F.I.R. and

from which the charge framed against the accused-petitioners are

concerned for the same the court-below has given finding that

examining the women patient through the ultrasound procedure

not maintaining the record in the prescribed format create the

strong presumption regarding pre-natal diagnostic test by the

accused persons.

30. Therefore it is found that the court-below has taken into

consideration the allegations made in the complaint and also the

statement of C.W.1, C.W.2 and C.W.3 who were examined before

the trial court prior direction to frame the charge against accused

persons.

31. The Hon'ble Apex Court held in State of Orissa vs.

Mamata Sahoo 2019 (7) SCC 486:

Para 2. Briefly stated the case of the prosecution is that on 28- 5-2014 at 11.00 a.m., a joint inspection was conducted by the State and District team, Dhenkanal, in Ultrasound Unit of Shri Jagannath Hospital. It was found that the respondents had violated the provisions under Sections 3(2), 5 and 29 of the PC and PNDT Act which is punishable under Sections 23 and 25 of the said Act. For violation of the PC and PNDT Act and Rules, the authorised officer of the Collector-cum-District Appropriate Authority, Dhenkanal, seized the ultrasound machine and other equipments from the said clinic. For such violation, the registration of ultrasound clinic of the respondents has been suspended vide order of the Collector dated 18-6-2014. A complaint was filed against the respondent-accused under Section 28(2) of the PC and PNDT Act. The trial court took cognizance of offences punishable under Sections 3(2), 5, 29, 23 and 25 of the PC and PNDT Act and issued summons to the respondents.

Para 4. The High Court quashed the proceedings initiated against the respondents on the ground that authorisation had not been granted by the District Magistrate-District Appropriate Authority, Dhenkanal, on 18-6-2014 for filing the complaint; but the inspection was conducted on 28-5-2014. The High Court held that on the date of inspection conducted by the Tahsildar, he had no authority to conduct the inspection. Referring to the Office Memorandum dated 27-7- 2007, the High Court held that the District Magistrate-District Appropriate Authority may nominate the Executive Magistrate of the District only to assist him in monitoring and implementation of the PC and PNDT Act and cannot delegate the entire authority. On those findings, the High Court quashed the proceedings against the respondents as not sustainable in law.

Para 7. As per Office Memorandum of the Health and Family Welfare Department dated 27-7-2007, the District Magistrate of each district is appointed as "District Appropriate Authority" for each district under the PC and PNDT Act. As per the said Office Memorandum, the District Magistrate-District Appropriate Authority may nominate the Executive Magistrate of the district as his/her nominee to assist him/her in monitoring the implementation of the PC and PNDT Act as deemed necessary. Additionally, Sub-Divisional Magistrate (Sub-Collector) of each Sub-Division is also appointed as an "Appropriate Authority" for the Sub-District/Sub-Division for strict implementation of the provisions under this Act. This is by virtue of the above Office Memorandum, the Executive Magistrate-Tahsildar has been nominated to assist the District

Appropriate Authority-District Magistrate in monitoring the implementation of the PC and PNDT Act. In the light of the above Office Memorandum, in our view, it cannot be said that the inspection conducted on 28-5-2014 is without authority/authorisation.

Para 10. Order dated 27-5-2014 has been mentioned in the complaint itself. However, the said order has not been taken note of by the High Court as it was not mentioned in the counter. We are not inclined to go into the merits of the rival contentions raised by the parties. Suffice to note that it is for the trial court to examine the correctness of the said Order No. 388 dated 27-5-2014.

Para 11. The High Court, in our considered view, did not properly appreciate the Office Memorandum dated 27-7-2007 and erred in quashing the proceedings initiated against the respondents and, therefore, the impugned order cannot be sustained. Accordingly, the impugned judgment of the High Court dated 29-6-2017 in Mamata Sahoo v. State [Mamata Sahoo v. State, Crl. MC 4845 of 2014, order dated 29-6-2017 (Ori)] is set aside and this appeal is allowed. Complaint Petition No. 2(C) CC Case No. 43 of 2014 shall stand restored to the file of the Sub-Divisional Judicial Magistrate, Dhenkanal, who shall proceed with the matter in accordance with law.

32. The Hon'ble Apex Court held in Federation of

Obstetrics and Gynaecological Society of India (FOGSI) vs.

Union of India & Ors. 2019 (6) SCC 283:

Medical and Health Law- Abortion Norms and Infanticide Prohibition- Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994- Ss. 3 to 6, 16-A, 17, 17-A and 20 to 24 and Form F of 1996 Rules- Ultrasonography of pregnant women- Statutory requirement of record keeping- Mandatory nature of every entry required to be made in terms of Form F of 1996 Rules- Presumption of guilt against person conducting such ultrasonography under S. 4(3) proviso for offences under Ss. 5 and 6 and penalty under Ss. 23(1) and (2), in case of deficiency and inaccuracy in record keeping- Validity of, upheld- It is not arbitrary or unconstitutional-Maintenance of such record, that is, the requirements of filling name and address of laboratory, name and age of patient, etc., and all other details in Form F of 1996 Rules, is mandatory-Petitioner not able to point out which entry in the said Form F is not mandatory- Plea that medical practitioner/doctors should not be penalized for clerical errors in record keeping, not tenable.

- In case required information in Form F is vague, the violation of the Act would be blatant and unchecked and offence or accused cannot be detected-There is no other barometer except Form F to find out why diagnostic test/procedure was performed- Form F is required to be filled by eligible and registered persons/medical practitioners conducting ultrasonography who are supposed to know and comply with mandatory requirements- Inaccurate and deficient Form F, therefore, raises presumption of guilt against medical practitioner conducting ultrasonography.

33. In view of the submissions made and the materials on

record, the impugned order passed by the court-below does not

bear any infirmity and needs no interference. Accordingly, this Cr.

Revision deserves to be dismissed.

34. This Cr. Revision is dismissed. The impugned order

passed by the court-below is affirmed. It is made clear that any

observation made or finding given in the order shall not prejudice

the merits of the case.

(Subhash Chand, J.)

Jharkhand High Court, Ranchi Dated the 11.10.2023 P.K.S.A.F.R.