Dr Ganesh vs State And Anr
2022 Latest Caselaw 12403 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 3240/2016

Dr. Ganesh Patel S/o Shri Shankar Bhai Patel, Pragati Hospital State Highway Near Pump Khedbrahma Distt. Sabarkantha Gujarat

----Petitioner Versus

1. The State Of Rajasthan

2. Shri Vikram Sevavat Sub-Inspector, Authorized Officer Of The State Appropriate Authority And Incharge Crime Branch State Pcpndt Cell Medical And Health Services Jaipur Distt Jaipur Raj.

----Respondents Connected With S.B. Criminal Misc(Pet.) No. 2345/2016 Dr Jitendra Kumar V. Shukla

----Petitioner Versus State And Anr.

                                                                    ----Respondents



For Petitioner               :     Mr. Chaitanya Gehlot
For Respondents              :     Mr. Arun Kumar, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgments

18/10/2022

1. The petitioners have preferred these petitions under Section

482 Cr.P.C. claiming the following reliefs:

S.B. Criminal Misc. Petition No. 3240/2016

"It is, therefore, most humbly and respectfully prayed on behalf of the petitioner that this criminal misc. petition may kindly be allowed, FIR No. 19/2016, P.S. PBI, Medical & Health Services, Rajasthan, Jaipur registered qua the petitioner for the offence under Sections 4,5, 6, 23, 25, 29 PCPNDT Act, 1994: Rule 9 & 10 PCPNDT Rules, 1996 and Section 315/511 IPC, as well as

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proceedings ensued therein till date, may kindly be quashed and set aside, so also the charge-sheet, if filed.

Any other appropriate order or direction which may be deemed just and proper in the facts and circumstances of the case may be passed in favour of the petitioner. "

S.B. Criminal Misc. Petition No. 2345/2016

"It is, therefore, most humbly and respectfully prayed on behalf of the petitioner that this criminal misc. petition may kindly be allowed, FIR No. 10/2016, P.S. PBI, Medical & Health Services, Rajasthan, Jaipur registered qua the petitioner for the offence under Drugs and Magic Remedies (objectionable Advertisement) Act, 1954; Section 315, 120-B IPC and Sections 4,5, 6, 23, 25, 29 PCPNDT Act, 1994: Rule 9 (2), (3), (4), (5) (6), (7) and (8) of the Rules of 1996 thereunder, as well as proceedings ensued therein till date may kindly be quashed and set aside, so also charge sheet, if filed.

Any other appropriate order or direction which may be deemed just and proper in the facts and circumstances of the case may be passed in favour of the petitioner. "

2. At the outset, learned counsel for the petitioners submits

that the impugned F.I.Rs ought to be quashed and set aside; as a

perusal of the provision of law contained in Sections 27 & 28 of

the P.C.P.N.D.T. Act and Rule 18A of the P.C.P.N.D.T. Rules, would

reveal that the respondent No.2 was not competent to file the

impugned First Information Reports.

3. Learned counsel for the petitioners further submits that the

judgment rendered by the Coordinate Bench of this Hon'ble Court

in the case of Dr. Mohammad Imtiyaz Vs. State of Rajasthan

(S.B. Criminal Misc. (Pet) No. 5502/2022, decided on

22.09.2022), squarely covers the controversy herein; in the said

case, the Hon'ble Court had observed that under the P.C.P.N.D.T.

Act, though a complaint made by the competent authority will

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survive, but the FIR lodged by the said authority would be in

violation of the aforementioned provisions of law contained in the

P.C.P.N.D.T. Act and Rules, and therefore shall not survive.

And that a perusal of the impugned First Information Reports

would reveal that the offences under the Sections therein are also

prime facie, not made out against the petitioners; being Section

315/511 I.P.C. in FIR No.19/2016, and Sections 315 & 120-B

I.P.C. in FIR No.10/2016, respectively.

For the sake of brevity, the said judgment rendered in Dr.

Mohammad Imtiyaz (supra) is reproduced hereunder:-

"1. The instant petition has been preferred invoking this Court's power under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") impugning the F.I.R. No.01/2022, registered at Police Station P.B.I., District Jaipur against the petitioner seeking his prosecution for offences under the provisions of Sections 420 & 120 -B of the Indian Penal Code, Sections 4, 5, 6, 18, 23 & 25 of the Pre-conception and Pre- natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as "the P.C.P.N.D.T. Act") and Rule 4 of Pre-conception and Pre-natal Diagnostic Techniques Rules, 1996 (hereinafter referred to as "the P.C.P.N.D.T. Rules").

2. While maintaining that the petitioner has been falsely implicated and a concocted story has been portrayed, Mr. Kumbhat, learned counsel for the petitioner argued that the respondent No. 2 has no jurisdiction to register an F.I.R. for offences under the provisions of the P.C.P.N.D.T. Act as the offences under Sections 4, 5, 6, 18, 23 & 25 of the P.C.P.N.D.T. Act are non-cognizable.

3. He further argued that even if the contents of the FIR are believed to be true, offence under Section 420 of the Indian Penal Code is not made out.

4. During the course of submissions, learned counsel for the petitioner informed that after registration of the impugned F.I.R., a complaint has also been instituted by Manohar Lal Meena, Police Inspector, Officer-in-charge, Police Station P.C.P.N.D.T. Bureau of

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Investigation, Medical & Health Services, Jaipur (hereinafter referred to as "the appropriate authority") and this FIR is hit by Article 20 of the Constitution and Section 300 of the Code.

5. Ms. Gehlot, learned Public Prosecutor, on the other hand, argued that since the petitioner has committed forgery, he is liable to be punished under Section 420 of the Indian Penal Code. She emphasised that even if the offence under the provisions of the P.C.P.N.D.T. Act are non-cognizable, the Investigating Officer could register the F.I.R. because, it is a case of multiple offences under two enactments arising out of one incident.

6. Heard learned counsel for the parties.

7. According to this Court, the allegation that the petitioner was involved in sex determination, definitely gives rise to an offence under the P.C.P.N.D.T. Act, but the moot question is whether such offence can be taken cognizance of by the Police or whether the Police can directly register an F.I.R.

8. Answer to the above question lies in Sections 27 and 28 of the P.C.P.N.D.T. Act, which are reproduced here infra:-

"27. Offence to be cognizable, non-bailable and non- compoundable. -Every offence under this Act shall be cognizable, non-bailable and non-compoundable.

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 organization.

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 sub- section (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."

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9. Rule 18A of the P.C.P.N.D.T. Rules also has an important bearing on the question involved, hence, relevant part thereof is being extracted herein below :-

"18A. Code of Conduct to be observed by Appropriate Authority. (1) ... xxx ...

(2) ... xxx ...

(3) All the Appropriate Authorities including the State, District and Sub-district notified under the Act, inter-alia, shall observe the following conduct for processing of complaint and investigation, namely :-

(i) ... xxx ...

to

(iii) ... xxx ...

(iv) as far as possible, not involve police for investigating cases under the Act as the cases under the Act are tried as complaint cases under the Code of Criminal Procedure, 1973 (2 of 1974)."

10. Sections 27 & 28 of the P.C.P.N.D.T. Act clearly suggest that the scheme of the Act bars interference of other authorities including the police. Section 28 clearly prohibits a Court from taking cognizance of any offence under the P.C.P.N.D.T. Act except pursuant to a complaint filed by an appropriate authority or authorised officer in this behalf. It is to be noted that a person other than appropriate authority or authorised officer cannot file a complaint directly to the Court - he has to give 15 days notice.

11. Rule 18A(3)(iv) of the P.C.P.N.D.T. Rules in express terms postulates that involvement of police shall be minimum. When the very involvement is discouraged under the Act and the Rules, registration of F.I.R., investigation and arrest by the police is out of question.

12. Moving on to the next question, whether provisions of Section 420 of the Indian Penal Code are attracted ? Entire story as narrated in the F.I.R., revolves around determination of sex and taking Rs. 50,000/- as fee for such act by the accused person. There is not even a whisper about cheating. Even the informer, at whose information, decoy or trap was plotted, did not allege cheating or inducement - the information was only about sex determination. During the course of trap also, the petitioner and other co-accused have agreed to determine the sex of the fetus.

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Hence, foundational or jurisdictional fact quintessential for offence under Section 420 of the Indian Penal Code is non- existent.

13. Impugned F.I.R. has been lodged by the Authorized Officer, Police Station P.B.I., Medical & Health Services, Jaipur, who might be an appropriate authority as per Section 28 of the P.C.P.N.D.T. Act, competent to file a complaint but not empowered to register an F.I.R.

14. The registration of F.I.R. is per se, illegal, contrary to the provisions of the P.C.P.N.D.T. Act and without jurisdiction.

15. For whatever has been discussed herein above, the petition deserves to be and is hereby allowed.

16. The F.I.R. No. 01/2022, Police Station P.B.I., Medical & Health Services, Jaipur registered against the petitioner on 22.04.2022 is hereby quashed.

17. Since the F.I.R. impugned has been quashed, the petitioner shall be released forthwith. The concerned Jail Superintendent, wherever the petitioner is lodged, is directed to release the petitioner on production of a certified copy of order instant.

18. As per information given by learned counsel for the petitioner, the petitioner is behind the bars since 22.04.2022 While invoking this Court's inherent powers, it is hereby directed that in case, the petitioner is ultimately convicted pursuant to complaint filed by the State, the period for which he has remained behind the bars, shall be considered against the sentence (if any) awarded by the trial court pursuant to the complaint filed against him under the provisions of the P.C.P.N.D.T. Act.

19. Needless to observe that quashing of present F.I.R. will have no bearing on complaint case, which is said to have been filed by the appropriate authority so far as offences under the provisions of P.C.P.N.D.T. Act are concerned. The Court concerned shall decide the same in accordance with law.

20. The stay application stands disposed of accordingly. "

3. On the other hand, learned Public Prosecutor opposes the

submissions made on behalf of the petitioners, and submits that a

perusal of the afore-quoted judgment reveals that the same is not

applicable in the present case.

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4. Heard learned counsel for both the parties as well as perused

the record of the case, and the judgment cited at the Bar.

5. This Court, looking into the factual matrix of the present

case, finds that the First Information Reports impugned herein

were filed by the respondent no. 2 i.e. the Sub-Inspector,

Authorized Officer under the P.C.P.N.D.T Act; although he is a

competent authority to file a complaint under the P.C.P.N.D.T. Act

i.e. Sections 27 and 28 thereof read with Rule 18A of the

P.C.P.N.D.T. Rules, however, the said authority is barred from

directly filing First Information Reports against a person accused

under the offences in the P.C.P.N.D.T. Act.

6. This Court observes that Section 315/511 and Sections 315

& 120-B, of the I.P.C. are interlinked with the offences under the

Act of 1994 and the Rules of 1996, and a perusal of the impugned

First Information Reports would reveal that the ingredients of the

offences alleged under the said Sections, are absent.

7. This Court, after looking into the factual matrix of the

present case, and as a result of the above discussion, finds that

the judgment rendered in Dr. Mohammad Imtiyaz (supra) is

applicable in the present case, and thus, the present petitions

deserve to be allowed, in terms of the said judgment.

8. Consequently, keeping into consideration the judgment

rendered by the Hon'ble Apex Court in the case of State of

Haryana and Ors. v. Ch. Bhajan Lal and Ors. (1992) Supp 1

SCC 335, and the judgment rendered by the Coordinate Bench of

this Hon'ble Court in Dr. Mohammad Imtiyaz (supra), the

present petitions are allowed. Accordingly, FIR Nos.19/2016

and 10/2016, registered at Police Station, PBI, Medical &

Health Services, Rajasthan, Jaipur; for the offences under

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Sections 4, 5, 6, 23, 25 and 29 of P.C.P.N.D.T. Act, 1994 and Rules

9 & 10 of the P.C.P.N.D.T Rules, 1996 and Section 315/511 IPC (in

FIR NO. 19/2016); and for the offences under the Drugs and

Magic Remedies (Objectionable Advertisement) Act, 1954, and

Sections 315, 120-B IPC, Sections 4, 5, 6, 23, 25, 29 of PCPNDT

Act, 1994 and Rules 9 (2) (3) (4) (5) (6) (7) & (8) of the Rules of

1996 (In FIR No. 10/2016) qua the present petitioners are hereby

quashed and set aside. However, it is made clear that the final

report filed by the competent authority shall be treated as

complaint, and the respondents shall be free to proceed strictly in

accordance with law. It is further made clear that the petitioners

shall be free to take all their legal issues at the appropriate stage,

before the competent court.

(DR.PUSHPENDRA SINGH BHATI), J.

ns. 21-22/-

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