Telangana High Court
Sri.Kathi.Kanakal Reddy vs High Court For The State Of Telangana on 15 April, 2025
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL PETITION No.15820 of 2024
ORDER:
This Criminal Petition is filed seeking the Court to
quash the proceedings against the petitioners in C.C.No.643
of 2023 on the file of the learned Judicial Magistrate of First
Class, Nalgonda, registered for the offences punishable under
Sections 120b, 312 and 420 of the Indian Penal Code, 1860
(for short 'IPC') and Section 23 of the Pre-Conception and Pre-
Natal Diagnostic Techniques Act, 1994 (for short 'the Act').
2. The brief facts of the case are that on April 10, 2023, at
6:00 PM, the administrator of Manda Sakhi Center in Nalgali,
lodged a complaint at Nalgonda I Town Police Station stating
that Kati Vijayendar Reddy Hospital in Sriramnagar Colony,
Nalgonda, was involved in illegal sex selection activities for
over a year, charging exorbitant fees. The hospital reportedly
referred pregnant women to other locations for sex selection.
Given Nalgonda's skewed sex ratio since 2010, the
complainant requested the Police to take action against the
hospital.
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3. Heard Sri Srinivas Podicheti, learned counsel appearing
on behalf of the petitioners as well as learned Assistant Public
Prosecutor appearing on behalf of the respondents.
4. Learned counsel for the petitioners submitted that the
petitioners have been falsely implicated in a case registered
under Sections 312, 420, 120(B) of the IPC and Section 23 of
the Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994. He contended that the
Police lack the authority to register the crime and investigate
the alleged offences under the Act, as only the "Appropriate
Authority" or authorized officers can file complaints under the
Act. Furthermore, it is argued that Section 420 of the IPC is
not applicable, as there is no allegation of cheating or
inducement, and the foundational facts for the offence are
absent. He relies on precedent judgments of this Court and
the High Court of Rajasthan, which have quashed similar
cases on the grounds that the complaints were not filed by the
appropriate authority and were not in accordance with the
law. Therefore, it is prayed that this Court to quash the
proceedings against the petitioners by allowing this criminal
petition.
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5. On the other hand, learned Assistant Public Prosecutor
opposed the submissions made by the learned counsel for the
petitioners stating that the allegations leveled against the
petitioners are serious in nature, which requires trial.
Further, at this stage, quashing of proceedings against the
petitioners does not arise. Therefore, he prayed the Court to
dismiss the criminal petition.
6. In light of the submissions made by both learned
counsel and upon perusal of the material available on record,
the allegations leveled against the petitioners are under
Sections 120b, 312 and 420 of IPC and Section 23 of the Act.
7. At this stage, it is significant to note Sections 27 and 28
of the PCPNDT Act, which read as follows:
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 authorized in this behalf by the Central
Government or State Government, as the case may
be, or the Appropriate Authority; or
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(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 subsection (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."
8. At this stage, it is pertinent to note the judgment of the
Karnataka High Court in Dr. Mallanagouda vs. The State of
Karnataka and another 1, wherein in paragraph Nos.10 to 16,
it is held as follows:
"10. In these cases the complaints are filed by
the District Health Officer i.e., respondent No.2. In
the complaints it is stated that the Vigilance Squad,
raided on authorization of Appropriate Authority
under Government notification mentioned therein
and orders of Planning Director of Health and Social
Family Welfare and the Deputy Director of
PC&PNDT etc., The notification, orders or
authorization are not produced along with the
complaints.
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11. Respondent No.2 in the complaints does
not even state that he was authorized by
'Appropriate Authority' to file aforesaid complaints
to prosecute the petitioners. Having regard to that,
there was no compliance of Section 28(1)(a) of
PCPNDT Act, 1994. There is force in the contention
that in the absence of production of such
notification, the complaints are incompetent.
12. The complaints were filed through private
advocate without any authorization of appropriate
authority representing the complaint or Government
Authorization. Since, the representation of the
complaint before the Court at inception was not
under authorization of Appropriate Authority or
Government, even that objections of the petitioners
are sustainable.
13. In the similar matter before the High
Court of Judicature at Bombay Bench at
Aurangabad in Dr.Sai w/o Santhosh Shiradkar vs.
The State of Maharashtra and another in Criminal
Writ Petition No.1381 of 2015, similar action was
challenged on the ground of violation of principles of
natural justice. It was contended that before filing
of complaint, the Appropriate Authority should have
given opportunity to the alleged defaulters and
taken their explanation, sought the compliance.
14. In that case court held that having regard
to scheme of the Act, Sections 17 (4), (a), 28 and 29
and Rule - 9, whenever any omissions or
commissions in compliance of Act and Rules are
found, the appropriate authority has to seek
explanation of the defaulters to find out, whether
there is any criminal intention in such violation. It
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was further held that, if there is scope for
correction, no criminal intention is found,
compliance can be permitted. Over all it is stated
that an opportunity shall be given to defaulters,
before taking recourse to prosecution of the
defaulters.
15. The learned counsel for the petitioners
submits that judgment in Dr.Sai's case referred to
supra, was confirmed by the Hon'ble Supreme Court
in Special Leave to Appeal (Crl)
Crl.M.P.No.5636/2017 on 17.04.2017. He produces
the copy of the said order.
16. For the reasons stated supra the trial
Court has committed error in taking cognizance of
the matter thereby causing gross injustice to the
petitioners. Therefore, petitions are allowed."
9. Further, the Judgment of the High Court of Punjab and
Haryana at Chandigarh in Hardeep Singh v. State of
Haryana and Others 2, wherein in paragraph Nos.45, 50, 70
and 71, it is held as under:
"45. Therefore, where a person is alleged to
have committed offences under Sections 24, 24-A
and 26 of the CA Act as also under the IPC but in
the absence of complaint under Section 28 of the CA
Act before the Magistrate's Court, no cognizance of
offences punishable under the CA Act could be
taken but nevertheless prosecution under IPC could
still be commenced against the accused. The
prosecution under IPC could not be disallowed on
2014 SCC OnLine P&H 25360
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the ground the CA Act was a special statute vis-à-vis
the IPC. What had been prohibited was that of
taking cognizance except on a complaint but in case
an offence under the IPC is made out the taking of
cognizance is not prohibited.
50. In the circumstances, it may be noticed
that in fact the taking of cognizance of the offence
under the Act can be said to be barred except on a
complaint made by 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 a
person who has given not less than fifteen days'
notice in the manner prescribed, to the Appropriate
Authority, of the alleged offence and of his intention
to make a complaint to the Court as provided for in
terms of Section 28 of the Act. However, the
offences under the Act being cognizable, nonbailable
and non-compoundable in terms of Section 27, the
investigation of the same by the Police would not per
se be barred.
70. The said observations would apply to the
cases under the Act in respect of doctors as well who
are said to have been negligent and committed a
cognizable offence under the Act.
71. In the circumstances, the questions are
formulated in the reference are answered in the
following manner, that:
1. FIR for the offence committed under the
Act can be registered on the complaint of
the Appropriate Authority and can be
investigated by the Police; however,
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cognizance of the same can be taken by
the Court on the basis of a complaint
made by one of the persons mentioned in
Section 28 of the Act.
2. A report under Section 173 CrPC along
with the complaint of an appropriate
authority can be filed in the Court.
However, cognizance would be taken only
the complaint that has been filed in
accordance with Section 28 of the Act.
3. FIR can be lodged and offences can be
investigated by the Police but cognizance
only of the complaint is to be taken by the
Court."
10. In those cases, complaints were filed by the District
Health Officer. It was stated that the Vigilance Squad
conducted a raid based on authorization from the Appropriate
Authority under a government notification. However, no such
notification or authorization was produced along with the
complaints. District Health Officer did not state that he was
authorized by the Appropriate Authority to file the complaints
and prosecute the petitioners. Therefore, there was no
compliance with Section 28(1)(a) of the Act. In the absence of
such authorization, the complaints were incompetent. The
complaints were filed through a private advocate without
proper authorization by the Appropriate Authority or the
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Government. Hence, the representation before the Court was
unauthorized, and the objections of the petitioners were valid.
11. In a similar matter, the High Court of Bombay in Dr. Sai
w/o Santhosh Shiradkar vs. State of Maharashtra and
Another (Criminal Writ Petition No.1381 of 2015) observed
that before filing a complaint, the Appropriate Authority
should give an opportunity to the alleged defaulters to provide
an explanation and seek compliance. The Court held that
under Sections 17(4)(a), 28, and 29 and Rule 9 of the Act, if
any violations are noticed, the Authority should seek an
explanation to determine whether the violations were
intentional. If not, and if compliance can be ensured,
prosecution should not be pursued. An opportunity must be
given before initiating prosecution. For the reasons stated
above, the trial court erred in taking cognizance of the matter,
causing grave injustice. Therefore, the petitions were allowed.
12. In the present case, the complaint indicates that the
hospital referred pregnant women to another center for
scanning, allegedly for sex determination. However, there is
no direct allegation of sex determination itself. Also, there is
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no specific allegation attracting Sections 420 or 312 of the
IPC.
13. At this stage, it is pertinent to note Section 312 of IPC,
which reads as under:
"Causing miscarriage:-Whoever voluntarily
causes a woman with child to miscarry, shall, if
such miscarriage be not caused in good faith for the
purpose of saving the life of the woman, be
punished with imprisonment of either description
for a term which may extend to three years, or with
fine, or with both; and, if the woman be quick with
child, shall be punished with imprisonment of either
description for a term which may extend to seven
years, and shall also be liable to fine.
Explanation.--A woman who causes herself to
miscarry, is within the meaning of this section."
14. The charge sheet reveals that L.W.1, who already had a
female child, conceived again and sought treatment at
Leelavathi Hospital, Nalgonda. Due to unavailability of
doctors, she was advised by L.W.3 to go to Sri Vijayender
Reddy Hospital. There, accused No.3 took her to accused
No.2, who referred her for scanning at Ashish Scanning
Center. The report was shared via WhatsApp, and accused
No.2 allegedly told her the fetus was female and unhealthy,
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and advised termination, demanding Rs.70,000/- for the
procedure.
15. Subsequently, based on directions from accused Nos.1
and 2, accused No.3 contacted L.W.3 to bring the patient back
to the hospital. Believing the accused, the patient and her
family consented to the termination. However, Section 312 of
IPC applies only when miscarriage is caused without good
faith to save the mother's life. In this case, the charge sheet
states the fetus was unhealthy, indicating medical reasons for
the termination.
16. Moreover, documents submitted by the petitioners show
that accused No.2 is the director of a licensed multispeciality
hospital staffed by qualified doctors. Thus, there is no
substantial basis for the prosecution's claim that the accused
were unqualified.
17. Therefore, continuation of proceedings based on
unsubstantiated and improperly filed complaints, without
compliance with Sections 27 and 28 of the Act, amounts to
abuse of process of law. Further, as observed in Hardeep
Singh (supra), although the police may file an FIR and
investigate, the Court may only take cognizance based on a
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complaint filed in accordance with Section 28 of the Act. In
this case, since the complaint was not properly filed by the
Appropriate Authority, the legal proceedings are not
sustainable.
18. In view of the above, this Court is of the considered
opinion that the continuation of proceedings against the
petitioners is not in accordance with law and amounts to an
abuse of process. Therefore, the proceedings against the
petitioners are liable to be quashed.
19. Accordingly, this Criminal Petition is allowed and the
proceedings against the petitioners in C.C.No.643 of 2023 on
the file of the learned Judicial Magistrate of First Class,
Nalgonda, are hereby quashed.
Miscellaneous applications, if any pending, shall also
stand closed.
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K. SUJANA, J
Date: 15.04.2025
SAI
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THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL PETITION No.15820 of 2024
Date: 15.04.2025
SAI
