Karnataka High Court
Meena Nursing Home vs State Of Karnataka on 10 February, 2022
Bench: M.Nagaprasannapresided Bymnpj
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.100067/2022
BETWEEN
MEENA NURSING HOME,
BY DR. ANIL SANGAR,
AGE- 56 YEARS, OCC. MEDICAL PRACTITIONER,
R/O. MANGALWAR PETH, NIPANI,
TQ. CHIKODI, DIST. BELAGAVI,
PIN-590001 TO 590020.
...PETITIONER
(BY SRI NEELENDRA D.GUNDE, ADVOCATE)
AND :
1. STATE OF KARNATAKA
THROUGH DISTRICT APPROPRIATE AUTHORITY
PRE-CONCEPTION AND PRE-NATAL
DIAGNOSTICS TECHNIQUES
(PROHIBITION OF SEX SELECTION)
(PCNDT) OF BELAGAVI,
SUB-DIVISION, BELAGAVI,
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
DHARWAD.
2. DISTRICT HEALTH OFFICER BY
SHRI APPASAHEB MURARI NARATTI,
AGE- 61 YEARS, OCC. GOVERNMENT SERVANT,
2
R/O. BELAGAVI, DIST. BELAGAVI-590 001.
...RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP FOR RESPONDENT NOS.1 & 2)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE ORDER DATED 29.01.2016 PASSED BY
PRINCIPAL CIVIL JUDGE AND JMFC, NIPANI IN C.C.NO.81/2016
THEREBY TAKING COGNIZANCE FOR THE OFFENCES
PUNISHABLE U/S 23, 29 OF RULE 9(3) AND (4) OF PRE-NATAL
DIAGNOSTICS TECHNIQUE-PCPNDT ACT, IN SO FAR AS
PETITIONER IS CONCERNED.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner calls in question the proceedings in
Criminal Case No.81/2016 registered for the offences
punishable under Sections 23 and 29 of the Pre-conception
and Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 (for short 'PCPNDT Act') of Rule 9(3) &
(4) of PCPNDT Act, insofar as the petitioner is concerned.
2. Heard Sri Neelendra D.Gunde, learned counsel
appearing for petitioner and Sri Ramesh Chigari, learned
HCGP appearing for respondent No.1-State.
3. The brief facts leading to filing of the present
petition as borne out from the pleadings are as follows :
The complainant on 06.01.2016 visits the nursing
home to verify and confirm the compliance of the
provisions of the aforesaid Act. The complainant finds that
USG units were installed and there was no record
maintained properly as contemplated under the PCPNDT
Act. On the said inspection, a complaint is registered by
the District Health Officer, Belagavi District, Belagavi, who
in terms of the PCPNDT Act, 1994 is not empowered to
register the complaint.
4. The issue with regard to the jurisdiction of the
District Health Officer to register a complaint need not
detain this Court for long or delve deep into the matter.
As three coordinate benches of this Court following the
Judgment of the Hon'ble Apex Court have quashed the
identical proceedings in Writ Petition Nos.200185/2018 and
in Criminal Petition No.100492/2021 and in Criminal
Petition No.100777/2018 disposed of on 14.12.2021, I
deem it appropriate to quote the last of the Judgments, a
coordinate Bench of this Court in the aforesaid judgment
has held as follows :
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."
5. The issue being covered by the Judgments
rendered by the co-ordinate Benches of this Court (supra)
is not disputed by the learned HCGP. Therefore, for the
reasons rendered in the aforesaid judgments, I deem it
appropriate to allow the present criminal petition
obliterating the proceedings against the petitioner.
6. For the aforesaid reasons, the following :
ORDER
(i) The criminal petition is allowed.
(ii) The impugned proceedings in Criminal Case
No.81/2016 on the file of Principal Civil
Judge and JMFC, Nippani is quashed
against the petitioner.
(iii) However, liberty is reserved to the State to
prosecute the petitioner on the same cause
of action, if the same is permissible in law.
SD
JUDGE
CKK
