Smt.Aruna Kottur Basappa Akki vs The State Of Karnatnaka
2021 Latest Caselaw 6060 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH
      DATED THIS THE 14TH DAY OF DECEMBER, 2021
                          BEFORE
           THE HON'BLE MRS.JUSTICE M.G.UMA
                  CRL.P.NO.100777/2018
BETWEEN :

SMT.ARUNA KOTTUR BASAPPA AKKI,
AGE : 65 YEARS, OCC; MEDICAL PRACTITIONER,
R/O MAHANTESH MULTISPECIALTY HOSPITAL,
ORTHOPEDIC & TRAUMA CENTRE, OPP. IB,
JOSHI GALLI, ILKAL AND MAHANTESH NURSING HOME,
ILKAL, TQ: HUNGUND, DT.BAGALKOT.
                                           ... PETITIONER
(BY   SRI C.V.NAGESH, SENIOR COUNSEL FOR
      SRI NEELENDRA D.GUNDE ADV.)
AND :

1.      THE STATE OF KARNATAKA
        THROUGH THE DISTRICT APPROPRIATE AUTHORITY,
        PRE-CONCEPTION & PRENATAL DIAGNOSTIC
        TECHNIQUES,
        (PROHIBITION OF SEX SELECTION) BAGALKOT.

2.      DR.D.B.PATTANSHETTI,
        AGE : 47 YEARS, OCC: DISTRICT FAMILY WELFARE
        OFFICER & CHAIRMAN DISTRICT PC-PNDT
        INSPECTIONS & MONITORING COMMITTEE-BAGALKOT.
        APPROPRIATE AUTHORITY/AUTHORISED OFFICER,
        R/O BAGALKOT, DT.BAGALKOT.
                                           ... RESPONDENTS
(BY     SRI PRAVEEN K.UPPAR HCGP)

      THIS PETITION IS FILED UNDER SECTION 482 OF THE
CODE OF CIVIL PROCEDURE PRAYING THIS COURT TO QUASH
THE ORDER DATED 19.12.2017 PASSED BY THE LEARNED
ADDL. CIVIL JUDGE & JMFC-HUNGUND IN C.C.NO.1406/2017
(P.C.NO.132/2017) THEREBY TAKING COGNIZANCE FOR THE
OFFENCES PUNISHABLE U/S 28(2) OF PRE-CONCEPTION &
PRE-NATAL DIAGNOSTIC TECHNIQUES (PROHIBITION OF SEX
SELECTION) ACT, 1994, AS AGAINST THE PETITIONER, IN THE
INTEREST OF JUSTICE AND EQUITY.
                                 2




      THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:


                          : ORDER :

The petitioner being the sole accused is before

this Court seeking to quash the order dated

19.12.2017 passed by the Additional Civil Judge &

JMFC Court at Hungund ("the Trial Court" for short),

in C.C.No.1406/2017 (P.C.No.132/2017), taking

cognizance for the offence punishable under Section

28(2) of the Pre-Conception & Pre-Natal Diagnostic

Techniques (Prohibition of Sex Selection) Act, 1994

("the Act" for short), as against the petitioner and

consequently to quash the criminal proceedings in the

interest of justice.

2. Brief facts of the case are that, the District

Family Welfare Officer & Chairman, District PC-PNDT

Inspections & Monitoring Committee, Bagalkot (herein

after "the Committee" for short) filed the private

complaint in PCR No.132/2017 before the Trial Court

against the accused alleging commission of the

offence under Section 28(A) of the Act. The

complainant had stated that, he is working as District

Family Welfare Officer & the President of the

Committee and he is the authorized officer under the

Act.

3. Heard Sri C.V.Nagesh learned Senior

Counsel for Sri Neelendra D.Gunde learned counsel

for the petitioner and Sri Praveen K.Uppar, learned

High Court Government Pleader for respondents-

State.

4. Learned Senior Counsel would submit that,

without going into the merits of the case, the

complaint should fail on the sole ground that the

complainant is not the authorized officer as required

under sections 17(3) and 28(1)(a) of the Act. He

would submit that, to maintain a complaint for

violation of any of the provisions of the Act and for

the Court to take cognizance of the offence as

required under Section 28(1) of the Act, the

complaint must be by an appropriate authority or any

officer authorized in this behalf by the Central

Government or the State Government, as the case

may be. A person being appropriate authority to

maintain the complaint should be, a person notified in

this regard as required under Section 17(3)(b) of the

Act. In the present case, the complainant is not the

appropriate authority or the person who is notified

under Section 17 of the Act and therefore the Trial

Court could not have taken cognizance of the offence

hence, there is a clear bar under Section 28 of the

Act.

5. He placed reliance on the decision of the

High Court of Madhya Pradesh, Indore, in the case of

Manvinder Singh Gill (Dr.) Vs. State of Madhya

Pradesh1 wherein the High Court has considered a

similar situation and held in paragraph No.12 as

under :

2013 SCC OnLine MP10918

"12. In view of the notification issued by the State Government dated 4.4.2007, it is clear that in exercise of the power conferred under section 17 (2) (3) (b) the District Magistrate, Indore has been appointed as appropriate authority. No other order/notification issued by the State Government for appointment of appropriate authority or officer authorized, in favour of Smt. Renu Pant or Shri Anand Sharma, Additional Collectors has been filed. By the order passed by the Collector on 12.4.2007 and 28.7.2010 they have been nominated to help the appropriate authority in monitoring for execution of the P.C. and P.N.D.T. Adhiniyam. As per the requirement of law, in view of the language of section 28 (1) (a) the complaint may be maintained either by the appropriate authority or by the officer authorized by the Central or State Government. On the basis of nomination order of Collector in favour of Smt. Renu Pant and Shri Anand Sharma, they cannot be treated to be the appropriate authority or officers authorized

for the purpose of section 28 of the Adhiniyam"

6. This judgment of the High Court of Madhya

Pradesh was called in question by the State of

Madhya Pradesh before the Hon'ble Apex Court in

Special Leave to Appeal (Criminal) No.2226/2014

which was came to be dismissed vide order dated

03.08.2015.

7. Relying on this decision, the learned Senior

Counsel would contend that, taking cognizance of the

complaint is bad under law and therefore, the said

order is to be set aside, consequently the complaint

filed by the complainant is also liable to be quashed.

Accordingly he prays for allowing the petition.

8. Per contra, learned High Court

Government Pleader would contend that even though

the complainant is not the appropriate authority as

defined under the Act, he has categorically stated in

the complaint that he is the District Family Welfare

Officer & President of Committee and the authorized

officer. Therefore, the complaint is maintainable.

Hence, he prays for dismissal of the petition.

9. Perused the materials on record.

10. In the light of the rival submissions made

by learned counsel for both the parties, the point that

would arise for consideration of this Court is as

follows:

"Whether the order dated 19.12.2017 passed by the Trial Court in PC.No.132/2017 (C.C.No.1466/ 2017) taking cognizance for the offence punishable under Section 28(2) of the Act is liable to be quashed under Section 482 of Cr.P.C?"

11. My answer to the above point is in the

'affirmative' for the following:

: REASONS :

12. The learned Senior Counsel restricted his

contention only on the technical ground that the

complaint filed by the complainant i.e., the District

Family Welfare Officer & the Chairman of the

Committee, Bagalkot is not maintainable for want of

authority as required under the provisions of the Act.

The notification in this regard dated 15.10.2011,

notifies the Deputy Commissioner at the District level

being the appropriate authority and under Section

17(3)(b) of the Act. The Assistant Commissioners of

the Sub-Divisions in the District of Bijapur, Bagalkot,

Davanagere, Belgaum, Chitradurga, Mandy, Bidar and

Gulbrga Districts were appointed as appropriate

authorities at the Sub-District level.

13. It is not in dispute that, the hospital in

question in the present case is situated at Ilkal, which

is within the district of Bagalkot. Admittedly, except

the notification dated 15.10.2011 there are no other

notification which appoints the complainant herein as

the appropriate authority, either under Section 17(2)

or under Section 17(3)(b) of the Act.

14. Section 28(1)(a) of the Act reads as

under:

28. Cognizance of offence.-(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 the State Government as the case may be, or the Appropriate Authority, or

(2) xxxxx

15. The decision relied on by the learned

Senior Counsel Manvinder Singh Gill (supra) as

well as of the Hon'ble Apex Court referred to above

makes it clear that to maintain a complaint under

Section 28(1)(a) of the Act, any officer authorized by

the appropriate authority notified under Section 17(3)

would also be entitled to initiate action under the Act.

But however, admittedly in the present case, the

complainant is not the officer notified under Section

17(3) of the Act. Therefore, the complaint should fail

only on technical ground, on that ground alone.

16. At this stage the learned High Court

Government Pleader seeks reserving liberty in favour

of the State to proceed against the accused in

accordance with law. Learned Senior Counsel would

submit that, if at all the liberty is to be reserved in

favour of the State to prosecute the accused, the

same is only if permissible under law.

17. In view of the above, I am of the opinion

that the cognizance taken by the Trial Court is liable

to be quashed. Hence, I answer the above point in

the 'affirmative' and proceed to pass the following:

: ORDER :

The petition is hereby allowed.

The order dated 19.12.2017 passed by the Additional Civil Judge & JMFC Court at Hungund in C.C.No.1406/2017 (P.C.No.132/2017), taking cognizance for

the offence punishable under Section 28(2) of the Act, against the petitioner is hereby quashed. Consequently the complaint in PCR.No.132/2017 is also quashed.

However, liberty is reserved with the State to

prosecute the accused on the same cause of action, if

the same is permissible under law.

All the contentions of the parties are kept open

to be highlighted at the appropriate stage.

Sd/-

JUDGE EM