Orissa High Court
Dr. Sudhir Kumar Brahma vs State Of Odisha on 19 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR CRLMC No.4249 of 2009
Dr. Sudhir Kumar Brahma .... Petitioner
Mr. B.P. Tripathy, Advocate
-Versus-
State of Odisha .... Opposite Party
Mrs. S. Patnaik, AGA
CRLMC No.3251 of 2012
Dr. Sindhu Charan Mohanty .... Petitioner
Mr. D.P. Dhal, Advocate
-Versus-
State of Odisha and another .... Opposite Parties
Mrs. S. Patnaik, AGA
CRLMC No.3729 of 2012
Dr. Ajay Kumar Mishra and another .... Petitioners
Mr. A. Patnaik, Advocate
-Versus-
Dr. Nilamadhab Mishra and another .... Opposite Parties
Mrs. S. Patnaik, AGA
CRLMC No.172 of 2017
Dr. Bipin Bihari Panigrahi .... Petitioner
Mr. D.P. Nanda, Advocate
-Versus-
State of Odisha .... Opposite Party
Mrs. S. Patnaik, AGA
Page 1 of 17
CRLMC No.1733 of 2015
Dr. Gopal Krishna Parida and another .... Petitioners
Mr. B.S. Das, Advocate
-Versus-
State of Odisha .... Opposite Party
Mrs. S. Patnaik, AGA
CRLMC No.1548 of 2017
Dr. Sandhyarani Panigrahi .... Petitioner
Mr. P.K. Panda, Advocate
-Versus-
State of Odisha and another .... Opposite Parties
Mrs. S. Patnaik, AGA
CRLMC No.682 of 2017
Dr. Bhubaneswar Sukla and others .... Petitioners
Mr. Basudev Mishra, Advocate
-Versus-
State of Odisha .... Opposite Party
Mrs. S. Patnaik, AGA
CRLMC No.1547 of 2017
Dr. J. Anuradha .... Petitioner
Mr. P.K. Panda, Advocate
-Versus-
State of Odisha and another .... Opposite Parties
Mrs. S. Patnaik, AGA
Page 2 of 17
CRLMC No.904 of 2013
Dr. Sanjukta Pattnaik .... Petitioner
Mr. D.P. Dhal, Advocate
-Versus-
State of Odisha and another .... Opposite Parties
Mrs. S. Patnaik, AGA
CRLMC No.1546 of 2017
Smt. Sonali Panigrahi .... Petitioner
Mr. P.K. Panda, Advocate
-Versus-
State of Odisha and another .... Opposite Parties
Mrs. S. Patnaik, AGA
CRLMC No.2086 of 2012
Dr. Surendra Mohanta .... Petitioner
Mr. D.P.Dhal Sr. Advocate
-Versus-
State of Odisha and another .... Opposite Parties
Mrs. S. Patnaik, AGA
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT: 19.09.2022
1.
In the present batch of cases, a common question of law is involved
which is as to the following:
(i) Whether the criminal prosecutions vis-à-vis the petitioners
under Sections 23 and 25 of the Pre-Conception & Pre-Natal
Diagnostic Techniques Act, 1994 (hereinafter referred to as
'the PC&PNDT Act') are legally tenable?
(ii) Whether such individual prosecution is by the designated
authority and if consistent with Sections 17 and 28 of the
PC&PNDT Act?
2. The impugned proceedings are challenged on the grounds inter alia
that the prosecutions ought to have been launched by the respective
District Magistrate (DM) as per and in accordance with the Government's
Office Memorandum (in short 'OM') dated 27th July, 2007 and not by
other officials like the Chief District Medical Officer (CDMO)/Additional
District Medical Officer (ADMO)/Executive Magistrate (EM). It is pleaded
that the learned courts below should not have entertained the
complaints which were filed not by the 'Appropriate Authority' (AA) in
accordance with the provisions of the PC&PNDT Act and the OM and
therefore, the proceedings should be quashed in exercise of the Court's
inherent jurisdiction.
3. It would be appropriate to reflect upon and discuss the relevant
provisions of the PC&PNDT Act before adverting to the rival claims of
the parties. In fact, the term AA is defined in Section 2(a) of the said Act
which means an authority appointed under Section 17 thereof. The pre-
natal diagnostic procedures have been prescribed in Section 4 with
certain restrictions imposed. Section 5 specifies that no person referred to
in Section3(2) of the PC&PNDT Act shall conduct the pre-natal diagnostic
procedure without the consent of the pregnant woman. The
determination of sex is fully prohibited in view of Section 6. An
elaborate procedure has been specified in the PC&PNDT Act for
regulation on pre-natal diagnostic techniques and the manner in which,
they shall have to be conducted, the intent and purpose being to prevent
its misuse in the sex determination. Section 17 deals with the AA and
functions an AA is required to discharge stands clearly mentioned in sub-
section (4) thereof. The powers of the AA in certain matters have been
indicated in Section 17(A) which is with regard to summoning of persons
in possession of any information relating to violation of the provisions of
the PC&PNDT Act; production of documents or material objects;
issuance of search warrant for any place suspected to be indulged in sex
selection techniques or pre-natal sex determination etc. Chapter VII of
the PC&PNDT Act deals with the offences and penalties. A reverse
presumption is attached in view of Section 24 of the PC&PNDT Act as to
absence of consent of the pregnant woman unless contrary is proved
while following the pre-natal diagnostic techniques for the purposes of
the said Act. The offences under the PC&PNDT Act are cognizable in
nature as per Section 27. In fact, Section 28 specifies that no court shall
take cognizance of any offence except on a complaint filed by the AA or
such other officer duly authorized by the AA or the appropriate
Government. As already indicated herein before, the ground of challenge
is that the prosecutions have been initiated at the instance of the
CDMO/ADMO/EM other than the AA which needs a threadbare
discussion with reference to the provisions of the PC&PNDT Act.
4. It is contended on behalf of the petitioners that the actions taken
under the PC&PNDT Act is not by the AA but instead by the
CDMO/ADMO/EM are not as per and in accordance with Section 28
which mandates that a criminal prosecution shall have to be through a
complaint filed by the AA. In some cases, it is made to suggest that
CDMOs have filed the complaints being authorized by the respective
DMs, who have been appointed as the AAs for each district within the
State by the OM superseding earlier notification No.3058 dated 24th
January, 2002 of the Health and Family Welfare Department of the
Government of Orissa, whereby, CDMO of a district was the AA under
the PC&PNDT Act. For better appreciation, the aforesaid OM is
reproduced herein below.
"Government of Orissa
Health and Family Welfare Department
No.19077/H. Dt.27/7/07
OFFICE MEMORANDUM
In pursuance of the Office Memorandum vide
No.24026/iii/06-PNDT dtd.12th Feb. 2007 of Ministry of
Health and Family Welfare, Government of India the District
Magistrate had been declared as District Appropriate
Authority under Section 17(2) of the Pre-Conception and
Pre-Natal Diagnostic Techniques Act, 1994 amended in
2002. Accordingly, the State Government do hereby
appoint the Appropriate Authority for the District and Sub-
District (Sub-Division) as follows for smooth enforcement of
the provision under the said Act.
1. District Appropriate Authority
The District Magistrate of each district is hereby appointed as
District Appropriate Authority for the District under the
above Act.
He may nominate an Executive Magistrate of the District is
his/her nominee to assist him/her in monitoring the
implementation of the PC&PNDT Act as deemed necessary.
2. Sub-District Appropriate Authority
The Sub-Divisional Magistrate (Sub-Collector) of each Sub-
Division is hereby appointed as Appropriate Authority for
the Sub-District (Sub-Division) for smooth implementation of
the provision under this Act.
The Notification of this Department vide No.3058
dtd.24.1.02 appointing the CDMO of each district as the
Appropriate Authority under the above Act is hereby
superseded.
Principal Secretary to Government"
5. From the provisions of the PC&PNDT Act, it is made to appear that
the offences under the said Act are triable by a court upon a complaint
being filed by the AA or any such official authorized by the Government
or the AA in that behalf. The primary and common ground of challenge
is that the petitioners have been prosecuted without valid complaints for
the fact that they have not been filed by the AAs. It is urged that the
complaints were filed by the CDMO/ADMO/EM instead of the DMs and
hence, the learned courts below committed a fundamental error in
entertaining the same being oblivious of Sections 17 read 28 of the
PC&PNDT Act.
6. This Court is fully conscious of the law vis-a-vis exercise of inherent
jurisdiction under Section 482 Cr.P.C. If there is a wrong or illegality
apparent on the face of record, or there appears a legal or jurisdictional
error, or to prevent abuse of process of law, or to secure the ends of
justice, the Court may exercise such power to set things right which
however depends on the facts and circumstances of a particular case. The
celebrated judgment of the Supreme Court in State of Haryana and
others Vrs. Ch. Bhajan Lal and others reported in AIR 1992 SC 604 is a
legal classicus on the point which outlined the broad parameters for
exercising the inherent jurisdiction under Section 482 Cr.P.C. and writ
powers under Article 226 of the Constitution of India. In other words,
the Apex Court in the decision (supra) laid down the principles for the
purpose of exercising such jurisdiction while dealing with quashing of
criminal proceedings. In the aforesaid case, apart from other situations
described, it has been held and observed that where if there is an express
legal bar engrafted in any of the provisions of the Cr.P.C. or the Special
Act to the institution and continuance of the proceedings, jurisdiction by
the High Court could be exercised.
7. Turning to the PC&PNDT Act and its provisions, Section 28 begins
with a non-obstante clause and goes on to say that cognizance of the
offences has to be based on a complaint by the AA or authorized officer.
On a conjoint reading of Section 17(3)(a)(b) and Section 28(1)(a) of the
PC&PNDT Act makes it is profoundly clear that a complaint is to be filed
by the AA or any such officer, who has been so authorized. It is
submitted at the Bar that in view of the above provisions, it has to be the
AA to file the complaint in view of the OM dated 27th July, 2007 which
allows him to do so besides to nominate an EM for monitoring the
implementation of the provisions of the PC&PNDT Act. It is contended
on behalf of the petitioners that a procedure is prescribed under the
PC&PNDT Act which is to be scrupulously followed without any
departure. In this regard, a judgment of the Supreme Court in the case of
Dipak Babaria and another Vrs. State of Gujarat and another reported in
(2014) 3 SCC 502 is relied upon to contend that when a statute provides
for a thing to be done in a particular manner, it has to be accomplished
in that manner only. The contention is that if a statute confers a power
and lays down a procedure for exercise of such power, it has to be
exercised in the manner so prescribed and in the present case, since the
complaints have been filed not by the AAs but by other officials, the
learned courts below should not have entertained it. In support of such
contention, a judgment of the Bombay High Court in the case of Dr.
Paayal Vrs. State of Maharastra and others (Criminal Writ Petition
No.250 of 2015) disposed of on 16th October, 2015 is cited, wherein, it is
held that when the complaint has not been filed by the AA as per the
PC&PNDT Act, the court cannot take cognizance of the offence in view
of Section 28 of the Act and in such eventuality, the proceeding shall
have to be terminated while making a reference to Article 21 of the
Constitution of India which mandates that a person shall not be deprived
of his life or liberty except according to the procedure established by law.
A decision of the M.P. High Court in the case of Mukesh Rathore Vrs.
State of M.P. and another decided in MCC No.3154 of 2020 and
disposed of on 26th June, 2020 is also placed reliance, wherein, it is held
that AA as defined under the PC&PNDT Act shall have to initiate the
action and no one else or by any such officer duly authorized by the
Government or the AA. As to the exercise of authority by the AA and
maintainability of the prosecution under the PC&PNDT Act, a decision of
the Supreme Court in the case of M.P. Vrs. Manvinder Singh Gill decided
in SLP (Criminal No.2226 of 2014) dated 3rd August, 2015 is also referred
to while contending that the Court shall have to take cognizance
according to the provisions of the PC&PNDT Act and in the manner
prescribed and not otherwise. In the said case, the challenge was to the
notification of the State Government to delegate powers to initiate
prosecution for offences under the Prevention of Food Adulteration Act,
1954. Herein essentially the contention is that the prosecutions have not
been set in motion through complaints filed by the AAs and therefore,
they are to be terminated since it touches upon and hits the jurisdiction
to entertain the same. The argument is that only if the complaint is a
valid one and as per the PC&PNDT Act, only then, it can be maintained
by a court and not otherwise.
8. On the other hand, the learned AGA strenuously urged that the
complaints have been filed at the behest of the AAs and therefore,
instead of adhering to the technicality rather considering the spirit of the
law and its legislative intent, the proceedings should not be quashed. In
that regard, a decision of the Supreme Court in the case of Federation of
Obstetrics and Gynaecological Societies of India (FOGSI) Vrs. Union of
India reported in (2019) 6 SCC 283 is relied upon. In the aforesaid case,
the Apex Court was seized of a matter where some of the provisions of
the PC&PNDT Act were challenged as ultra vires which was repelled and
rejected with a conclusion that they have been incorporated to give
effect to the aim and objective of the statute. One more judgment in the
matter of State of Orissa Vrs. Mamata Sahoo and others reported in
(2019) 7 SCC 486 is cited by the learned AGA, wherein, the Apex Court
declined to interfere with a proceeding which was challenged on the
ground that the inspection under the PC&PNDT Act was conducted by
an EM and not the AA. The sum and substance of the argument by the
learned AGA is that even though, in the cases at hand, the complaints
have not been filed by the AAs but having regard to the intent and
purport of the PC&PNDT Act and its legislative design, the proceedings
vis-à-vis the petitioners should not be terminated on such ground rather
the effort must be to ensure to penalize the perpetrators of the crime. In
the decision of FOGSI (supra), the Supreme Court examined validity of
some provisions of the PC&PNDT Act and finally dismissed it with a
conclusion that they are indeed intra vires. The learned AGA contended
that the PC&PNDT Act has been incorporated with a purpose and the
same was analyzed by the Apex Court in the aforesaid case, wherein, it
has been concluded that the real aim and objective of the statute is to
prevent the menace of female foeticide.
9. The relevant excerpt of the decision in FOGSI is reproduced herein
below:
"26. Before we dilate upon various aspects, we take note of
provisions of the Act. The Act was introduced by Parliament
with the following Statement of Objects and Reasons:
"STATEMENT OF OBJECTS AND REASONS It is proposed
to prohibit prenatal diagnostic techniques for determination
of sex of the foetus leading to female foeticide. Such abuse
of techniques is discriminatory against the female sex and
affects the dignity and status of women. A legislation is
required to regulate the use of such techniques and to
provide deterrent punishment to stop such inhuman act.
The Bill, inter alia, provides for:--
(i) prohibition of the misuse of prenatal diagnostic
techniques for determination of sex of foetus, leading to
female foeticide;
(ii) prohibition of advertisement of prenatal diagnostic
techniques for detection or determination of sex;
(iii) permission and regulation of the use of prenatal
diagnostic techniques for the purpose of detection of specific
genetic abnormalities or disorders;
(iv) permitting the use of such techniques only under certain
conditions by the registered institutions; and
(v) punishment for violation of the provisions of the
proposed legislation.
2. The Bills seeks to achieve the above objectives." The
concern of the Legislature was that the female child is not
welcomed with open arms in most of Indian families and
the diagnostic technique is being used to commit female
foeticide."
The Apex Court in the aforesaid decision examined the constitutional
validity of the provisions of the PC&PNDT Act with reference to Part III
of the Constitution of India and observed as under:
"71. The Act intends to prevent mischief of female foeticide
and the declining sex ratio in India. When such is the
objective of the Act and the Rules and mischief which it
seeks to prevent, violation of the rights under Part III of the
Constitution is not found. This Court in Hamdard
Dawakhana v. The Union of India AIR 1960 SC 554 has laid
down the following principles:
"8. Therefore, when the constitutionality of an
enactment is challenged on the ground of violation
of any of the articles in Part III of the Constitution,
the ascertainment of its true nature and character
becomes necessary i.e. its subject matter, the area in
which it is intended to operate, its purport and
intent have to be determined. In order to do so it is
legitimate to take into consideration all the factors
such as history of the legislation, the purpose
thereof, the surrounding circumstances and
conditions, the mischief which it intended to
suppress, the remedy for the disease which the
legislature resolved to cure and the true reason for
the remedy; Bengal Immunity Co. Ltd. v. State of
Bihar, 1955 2 SCR 603 at pp. 632, 633 (S) AIR 1955
SC 661 at p.674); R.M.D. Chamarbaughwala Union
of India, 1957 SCR 930 at p. 936: ( (S) AIR 1957 SC
628 at p.631);Mahant Moti Das v. S.P. Sahi , AIR
1959 SC 942 at p. 948.
9. Another principle which has to borne in mind in
examining the constitutionality of a statute is that it
must be assumed that the legislature understands
and appreciates the need of the people and the laws
it enacts are directed to problems which are
made manifest by experience and that the elected
representatives assembled in a legislature enact laws
which they consider to be reasonable for the
purpose for which they are enacted. Presumption is,
therefore, in favour of the constitutionality of an
enactment. Charanjit Lal v. Union of India, 1950
SCR 869: (AIR 1951 SC 41); State of Bombay v. F.N.
Bulsara, 1951 SCR 682 at p. 708: (AIR 1951 SC 318
at p. 326); AIR 1959 SC 942."
72. The mischief sought to be remedied is grave and the
effort is being made to meet the challenge to prevent the
birth of the girl child. Whether Society should give
preference to male child is a matter of grave concern. The
same is violative of Article 39A and ignores the mandate
of Article 51A(e) which casts a duty on citizens to renounce
practices derogatory to the dignity of women. When sex
selection is prohibited by virtue of provisions of Section 6,
the other interwoven provisions in the Acts to prevent the
mischief obviously their constitutionality is to be upheld."
10. According to the Apex Court in the FOGSI case, the PC&PNDT Act is a
comprehensive social legislation having been conceived to avoid the
consequences of skewed sex ratio in India which could propel to serious
incidents of violence against women. The Court is well aware of the
significance of such a statute which is enacted to obviate illegal acts of pre-
natal diagnostic procedures being adopted for the purpose of ascertaining
the sex of an unborn child. Against the above backdrop, the Court is to
appreciate whether the plea of the petitioners challenging the
prosecutions on the ground of invalid complaints should be accepted. At
the same time, the ratio of the judgment in Dipak Babaria(supra) is to be
borne in mind since if a statute has conferred a procedure to do an act, it
necessarily bars the doing of such act in any other manner than the one
specified. Thus, the pertinent question is, whether, the CDMO/ADMO/EM
could have filed the complaints and the courts concerned should have
entertained the same for having not been filed by the DMs?
11. As per Section 17(4)(e) of the PC&PNDT Act, the AA shall have the
authority to take appropriate legal action against the use of any sex
selection technique by any person at any place either suo motu or being
brought to notice and also to initiate independent investigation in such
matters. So it is the AA who is to initiate the prosecution after taking up
investigation. In other words, the AA is to file the complaint only upon
which the court shall take cognizance of the offences. Section 28 (1) of the
PC&PNDT Act clearly mandates that a court shall not take cognizance of
any offence except on a complaint being filed by the AA or by any officer
authorized by him or the appropriate Government. Whether the AA can
delegate the power to any other officer for filing of a complaint? The
reply to the above question is not in the affirmative. The PC&PNDT Act
does not provide any such authority for the AA to delegate the
responsibility. However, the AA can authorize an officer for the aforesaid
purpose which is evident from Section 28(1)(a) of the Act. In so far as the
OM of the State Government dated 27th July, 2007 is concerned, the AA
may nominate an EM of the district as his nominee to assist him in
monitoring implementation of the PC&PNDT Act. The petitioners
contend that for a limited purpose, an EM is nominated so as to render
assistance to the AA, who is primarily responsible for the execution and
overall implementation of the provisions of the PC&PNDT Act. In other
words, according to the petitioners, an EM if nominated by the AA shall
be responsible for offering his assistance and therefore, cannot and shall
not be eligible to register a complaint which has to be done by the AA
only. In the decision of Mamata Sahoo (supra), the Apex Court held that
when an EM inspected a clinic, the proceeding has not been vitiated as he
was authorized for the said purpose. The above decision has been relied
upon by the learned AGA while contending that the filing of the
complaints by the CDMO/ADMO/EM since a part of the implementation
process notwithstanding the fact that the DMs have not filed such
complaints, in view of the said authority of the Apex Court, the
proceedings cannot be held as bad in law. But the PC&PNDT Act is very
clear which speaks of the manner in which the complaints are to be filed
and it must have to be by the AA which is conspicuously evident from
Section 28(1) of the said Act. If the CDMO of a district files a complaint,
he cannot file it not being the authority under the PC&PNDT Act. In some
of the cases, it has been found that instead of a complaint being filed, FIR
has been registered. For taking of cognizance of offences punishable under
the PC&PNDT Act, no doubt an investigation may be undertaken by the
police but for initiating a criminal prosecution, it shall have to be through
a complaint filed by the AA. From the aforesaid discussion, the conclusion
which is drawn by the Court stands summarized herein below:
(i)AA is the authority who is to file the complaint as per
Section 17(4)(e) read with Section 28 of the PC&PNDT Act
read with the OM of the State Government dated 27th July,
2007 and no other official;
(ii)In view of the OM, DM is the AA in respect of a district
and SDM (Sub-Collector) shall be the authority vis-à-vis Sub-
District (Sub-Division) who shall file the complaint under the
PC&PNDT Act;
(iii)For the purpose of rendering assistance, an EM may be
nominated by the DM for monitoring the implementation of
the PC&PNDT Act which is by virtue of the OM of 2007;
(iv)The authority to file the complaint cannot be shifted by
the AA, inasmuch as, there is no such provision in the
PC&PNDT Act for delegation of power for the said purpose;
(v)A complaint cannot be filed by any other official as a
substitute of the AA or in the guise of or on behalf of the AA
in derogation to the OM;
(vi)For the purpose of inspection, investigation etc. any
other officer may be engaged by the orders of the DM in
accordance with the OM which is for assisting the authority
in due implementation of the PC&PNDT Act and not
beyond;
(vii)Any such complaint filed other than by the AA cannot
be held as a valid prosecution in accordance with law;
(viii) The OM is issued by the State Government whereby
the DM/SDM is to file the complaint and not the CDMO
anymore after supersession of the notification of 2002 and if
at all, he is treated as an EM, he can only be said to render
help and assistance to the DM and not to usurp the
jurisdiction of the AA.
12. With the above conclusion, the Court proceeds to decide the fate of
the cases which is described herein below:
(i) CRLMC No.4249 of 2009, CRLMC No.682 of 2017: In both the
cases, chargesheets have been filed under Sections 312,315,316,109 and 34
IPC and Sections 23 and 25 of the PC&PNDT Act, Section 5(3)(4) of
Medical Termination of Pregnancy Act, 1971 and Section 16(1) of the
Orissa Clinical Establishment Act, 1990. In so far as offences under the
PC&PNDT Act are concerned, though investigation is permitted being
cognizable in nature, however, the complaints were needed to be filed by
the DMs which is the statutory mandate and therefore, the courts below
could not have taken cognizance of the offences under Sections 23 and 25
thereof on the strength of the chargesheets, whereas, taking cognizance of
offences under the IPC and other Special Acts is tenable in law and hence,
it calls for no interference;
(ii) CRLMC No.172 of 2017, CRLMC No.3729 of 2012, CRLMC
No.3251 of 2012 and CRLMC No.2086 of 2012: In all the above cases,
since the complaints have been filed by the CDMOs and consequential
orders passed, the proceedings for offences under Sections 23 and 25 of
the PC&PNDT Act cannot be sustained for not being filed by the DMs;
(iii) CRLMC No.1548 of 2017, CRLMC No.1547 of 2017, CRLMC
No.1733 of 2015 and CRLMC No.1546 of 2017: In the aforesaid cases, the
ADMOs have filed the complaints and not the concerned DMs and
therefore, the proceedings for the offences under Sections 23 and 25 of
the PC&PNDT Act are to be held as not maintainable in law;
(iv) CRLMC No.904 of 2013: In the present case, the EM has
initiated the prosecution under Sections 23 and 25 of the PC&PNDT Act
by filling the complaint and therefore, the same is legally untenable.
13. The conclusion in respect of CRLMC No.4249 of 2009 and CRLMC
No.682 of 2017 is in agreement with an earlier decision of this Court in
CRLMC No.2082 of 2010 in case of Ramesh Chandra Naik and others
Vrs. State of Odisha decided and disposed of on 3rd April, 2018, wherein,
it has been concluded that Section 27 of the PC&PNDT Act stipulates that
every offence under the said Act being cognizable and Section 154 Cr.P.C.
since provides that every information relating to the commission of
cognizable offence has to be registered as an FIR and as per Section 156
Cr.P.C. when an OIC of the P.S. can investigate any cognizable case
committed within its local jurisdiction even without the orders of a
Magistrate, however, in view of the special provision in the PC&PNDT
Act, lodging of an FIR and submission of chargesheet for such offences is
impermissible as any such cognizance shall have to be based on a
complaint moved by the authority empowered to do so. Hence,
therefore, in both the cases since the cognizance of the offences under
Sections 23 and 25 of the PC&PNDT Act has been taken on the basis of
chargesheets and not on the strength of complaints as envisaged in Section
28 of the PC&PNDT Act, the Court has therefore held that the impugned
proceedings cannot stand and shall have to be terminated. In the said
decision, the concerned authority was granted the liberty to file complaint
before the appropriate court. However, in the present case, the Court
does not wish and is not inclined since no real and worthy purpose would
be served by granting such liberty after so long. With regard to the
challenge as to the constitution of the AA by the State Government as per
the OM not to be consistent with Section 17(3) of the PC&PNDT Act, it
has remained so and survived till now and though raised by the learned
counsel appearing for some of the parties but the Court is of the view that
said question should be left open for determination in such other
proceedings at appropriate point of time.
14. Assimilating the points, the Court observes that the State Government
declared the AAs for the district and sub-division under the OM dated 27th
July, 2007 for exercising jurisdiction under Section 17(2) of the PC&PNDT
Act amended in 2002. If a CDMO/ADMO is treated as an EM, then also
in the considered view of the Court, they shall have a limited role to play
so as only to assist the DM but not to substitute the latter as the AA for
the purpose of filing complaint under the PC&PNDT Act. The DM/SDM is
only to initiate legal action by filling complaint against persons who are
directly or indirectly involved in sex determination. Though the OM
authorizes the EM to have the role of assisting the DM, however, by no
stretch of imagination, he can be permitted to file the complaint which
shall have to be by the DM at the district level and SDM/Sub-Collector at
the level of Sub-Division. So, at the cost of repetition, it has to be held
that in all the above cases, the procedure which has been laid down and
the mechanism in place as stipulated in the PC&PNDT Act read with the
OM was not followed, rather, the officials who did not have the
authority to file complaints for the offences punishable under Sections 23
and 25 of the said Act initiated the prosecutions which cannot be
sustained in law. To reiterate and while referring to the decision of the
Apex Court in the case of Dipak Babaria (supra) and applying its ratio, the
Court reaches at a logical conclusion that a complaint shall have to be
filed by the DM and the procedure so prescribed in the PC&PNDT Act
must be followed in view of the rule of interpretation 'expressio unius est
exclusio alterius' which stipulates that when something is mentioned
expressly in a statute, it leads to the presumption that the things not
mentioned are excluded. Thus, the Court is of the final opinion that even
assuming that the CDMOs/ADMOs have been nominated as the EMs, they
could not have filed the complaints. Any such authorization in favour of
the CDMOs/ADMOs by the DMs shall have to be read in terms of the
OM which only nominates them as the EMs to assist the respective DMs in
the monitoring and implementation of the PC&PNDT Act and not to cross
the line especially when the OM replaced the earlier notification of 2002
which had appointed the CDMOs as the AA.
15. The end result is restated:
(i)CRLMC No.4249 of 2009 and CRLMC No.682 of 2017: Both
the petitions stand allowed to the extent indicated above. As a logical
sequitur, the orders of cognizance vis-à-vis offences under Sections 23 and
25 of the PC&PNDT Act are hereby set aside. But, in so far as other
offences under the IPC and Special Acts are concerned, the proceedings
are to continue wherein the petitioners shall have the opportunity to
defend during the enquiry and trial since it would require examination of
the materials to find out existence of a prima facie case; and
(ii)CRLMC No.172 of 2017, CRLMC No.3729 of 2012, CRLMC
No.3251 of 2012, CRLMC No.1548 of 2017, CRLMC No.1547 of 2017,
CRLMC No.1733 of 2015, CRLMC No.2086 of 2012, CRLMC No.904 of
2013 and CRLMC No.1546 of 2017: The aforesaid petitions stand
allowed. As a necessary corollary, the orders of cognizance, framing of
charge as well as the criminal proceedings in the whole pending before
the respective courts are hereby quashed.
16. Accordingly, it is ordered.
(R.K. Pattanaik)
Judge
