Back
2016 Supreme(Bom) 2150
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Anuja Prabhudessai, J.
Rajender Amirchand Sujanyal and Ors. - Appellants
Versus
State of Maharashtra Public Health Department and Ors. - Respondents
Writ Petition No. 4310 of 2015
Decided On : 21-12-2016
For the Appellant :A.K. Barthakur i/b. Maya Majumdar, Advocates.
For Respondents: P.P. Shinde, APP.
Headnote:Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 - Sections 2(a), 17, 17-A and 28-Complaint for offence under.-In absence of proper authorisation by State Government to lodge complaint, cognizance of offence cannot be taken.
It is also to be noted that acting upon the order dated 9.7.2012, the respondent No. 3 not only sealed the sonography machine but also issued a show-cause notice to the petitioner No. 1 and investigated the allegations of breach of the provisions of the PCPNDT Act. Furthermore, the respondent No. 3 lodged a complaint against the petitioners without being appointed as the Appropriate Authority or without there being any authorisation in this regard either by the State Government or by the concerned Appropriate Authority. The respondent No. 3 was neither notified as the Appropriate Authority in accordance with the provisions of Section 17(2) of the PCPNDT Act nor was he authorised by the State Government or the concerned Appropriate Authority to lodge the complaint. Hence, in view of the express bar under Section 28 of the PCPNDT Act, the Court was barred from taking cognizance of the offence under the Act.
Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 - Sections 4, 23 and 30-Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996, Rule 9-Criminal Procedure Code, 1973, Sections 228 and 482-Framing of charge for offence under Act.-Since complaint and evidence on record not disclosing any offence against petitioner hence order framing of charge liable to be quashed and set aside.
The complaint as well as the evidence recorded under Section 244 of the Code of Criminal Procedure does not disclose any offence against these petitioners. Under such circumstances sealing of the sonography machine and subjecting the petitioners to unnecessary criminal prosecution, is nothing but an abuse of process of law. The Judge failed to consider these vital aspects and erred in dismissing the revision application and thereby ordering framing of charge.
Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 - Sections 4, 23 and 30-Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996, Rule 9-Criminal Procedure Code, 1973, Sections 228 and 482-Offence under Act.-Since complaint not disclosing any offence against petitioner hence order framing charge against petitioner quashed and set aside.
Anuja Prabhudessai, J.
Heard. Rule. By consent of the parties, Rule is made returnable forthwith.
2. The Petitioner herein has challenged the validity of the order dated 6th October, 2015 whereby the learned Additional Sessions Judge, Pune, dismissed the Criminal Revision Application No. 695 of 2014.
3. The brief facts necessary to decide this petition are as under:-
"The Petitioner No. 1 is a Gynecologist and he owns and runs "Stree Hospital". He has an Ultrasound clinic in the said hospital. The Petitioner No. 2 who is a visiting Sonologist at Stree Hospital performs sonographic examinations on the patients in the said hospital on every Tuesday, Thursday, and Friday between 3.00 p.m. to 5.30 p.m. as per the referral chit."
4. By order dated 14th June, 2012 under Section 30 of the Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as "the PCPNDT Act"), the Commissioner of Pimpri Chinchwad Municipal Corporation, who has been notified as the Appropriate Authority delegated powers to various Medical Officers including Dr. L.P. Gophane to enter and search genetic counselling centres, genetic laboratory, genetic clinic and MTP centre and to examine and seize records and seal the machine if there was reason to believe that an offence under the Act was being committed at any such center or clinic. Accordingly, Dr. Gophane inspected the said Sonography Centre on 21.6.2012 between 1.00 p.m. to 2.20 p.m. He prepared the inspection report, wherein he observed as under:-
1.
Qualification of USG Holder
M.D.(Obs & Gynae)
2.
General aspects
Good
3.
Maintenance record
Update well
4.
Monthly returns
Regular
5.
Unauthorised person operating machine
No.
6.
Violation of PCPNDT Act
No.
7.
Legal action proposed, if any
No.
8.
Any other observation
Case card signed by Hospital owner not by sonologist.
5. Dr. Gophane further observed that the Sonography reports were signed by the Petitioner No. 1, the owner of the Hospital, and not by the Petitioner No. 2, who had in fact carried out the ultra sonography test. In view of the said alleged contravention of the provisions of the PCPNDT Act, he seized 15 Reports, 'F' forms and referral chits in presence of the pancha witnesses.
6. Dr. L.P. Gophane and the Respondent No. 3, who was holding charge of the post of Medical Officer, visited Stree Hospital on 17th July, 2012. They sealed the ultra-sound machine under panchanama dated 17th July, 2012. By show-cause notice dated 30th August, 2012, the Respondent No. 3 called upon the Petitioner No. 1 to explain the discrepancies noted in the panchanama. The Petitioner No. 1 explained that the hand written reports are signed by the Petitioner No. 2 and that he being the head of the institution signs the computer-generated reports. The Petitioner No. 1 further submitted that F-Forms are duly filled in and signed by the Petitioner No. 2. He has further submitted that the said forms are also signed by him as the owner of the hospital. He stated that the register of the F-Forms is duly maintained and that the F forms are also sent online to PCMC on health line portal. He further submitted that he has maintained every record as required under the PCPNDT Act.
7. The Respondent No. 3, who claimed to be the Appropriate Authority did not accept the explanation given by the Petitioners. He filed a complaint against the Petitioners for committing offences punishable under Sections 23, 25, 29 of the PCPNDT Act, 2003 and Rule 6(6) (7) framed thereunder. The same was registered as RCC No. 43 of 2013.
8. The statement of the Respondent No. 3 was recorded and by order dated 14th February, 2013 the learned Magistrate issued process against the Petitioners for committing offences punishable under Sections 23(1), 25 and 29 r/w Rule 6 (6) (7) of the
