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2017 Supreme(Bom) 2295
IN THE HIGH COURT OF BOMBAY
A.M. Badar, J.
Dr. Kavita Pramod Kamble (Londhe) - Applicant
Vs.
State of Maharashtra and another - Respondents
Cri. Rev. Appln. No. 554 of 2015
Decided On : 30-11-2017
Advocate Appeared:
For the Applicant : M.S. Mohite, J. Shekhar, J. Shekhar and Co.
For the State : A.R. Kapadnis
The complaint for the offence under the PCPNDT Act can only be made by the Authority, Officer, or Person competent to do so as per the mandatory provisions of section 28 of the PCPNDT Act.
Headnote:
PCPNDT Act - Conviction of the revision petitioner/accused for contravention of various sections and rules under the PCPNDT Act and PNDT Rules - Revision petition allowed, impugned judgments and orders quashed and set aside, revision petitioner/accused acquitted of all offences alleged against her, bail bond cancelled, pending Criminal Application disposed of
Fact of the Case:
The revision petitioner/accused challenged her conviction and resultant sentence for alleged contravention of the provisions of PCPNDT Act as well as PNDT Rules framed thereunder. The revision petition was heard finally as the record and proceedings were already called and available with the Court.
Finding of the Court:
The Court held that the complaint filed by the Medical Superintendent, Sub-District Hospital, Karmala, was not maintainable as the same was not filed by the Appropriate Authority. The Court found that the complaint for the offence punishable under the PCPNDT Act can only be made by the Officers/persons authorized under the said section. The Court concluded that the complaint was not lodged by an authority competent to lodge the same for alleged commission of offences under the PCPNDT Act by the revision petitioner/original accused.
Issues: The main contention was whether the complainant is an Appropriate Authority under the PCPNDT Act and whether the private criminal complaint lodged by him in the capacity of the Medical Superintendent was maintainable.
Ratio Decidendi: The Court held that the complaint for the offence under the PCPNDT Act can only be made by the Authority, Officer, or Person competent to do so as per the mandatory provisions of section 28 of the PCPNDT Act. The Court found that the complaint was not made by the Authority, Officer, or Person competent to do so and hence the Courts below had no powers to take cognizance of an offence under the PCPNDT Act alleged against the revision petitioner/original accused.
Final Decision: The revision petition was allowed, impugned judgments and orders were quashed and set aside, the revision petitioner/accused was acquitted of all offences alleged against her, bail bond was cancelled, and pending Criminal Application was disposed of.
This is a revision petition by the original accused in Regular Criminal Case No. 318 of 2011 decided on 28th February 2014 by the learned Judicial Magistrate First Class, Karmala, District Solapur. The learned trial Court, by this judgment and order, was pleased to convict the revision petitioner/accused of offences punishable under section 23 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003, (hereinafter referred to as PCPNDT Act for the sake of brevity) for contravention of sections 5(2) and 6, for contravention of section 4(3) read with Rule 9(4), 10(1A) of the Pre-natal Diagnostic Techniques (Regulation and Prevention of misuse) Amendment Rules 2003 (hereinafter referred to as PNDT Rules for the sake of brevity), for contravention of Rule 9(8) of PNDT Rules, for contravention of section 5 of PCPNDT Act read with Rule 10 of PNDT Rules and for contravention of Rule 19(4), Rule 17(1) and Rule 17(2) of PNDT Rules. For contravention of sections 5(2) and 6 of PCPNDT Act, for contravention of section 4(3) of PCPNDT Act read with Rule 9(4), 10(1A) of PNDT Rules as well as for contravention of section 5 of PCPNDT Act read with Rule 10 of PNDT Rules, the revision petitioner/accused is sentenced to undergo rigorous imprisonment for 3 years apart from payment of fine of Rs.10,000/- in default, to undergo further simple imprisonment for 2 months, on each count. For contravention of Rule 9(8) of PNDT Rules punishable under section 23 of the PCPNDT Act, the revision petitioner/accused is sentenced to suffer rigorous imprisonment for 6 months and to pay a fine of Rs.5,000/-, in default, to undergo further simple imprisonment for 1 month. For contravention of Rule 19(4), Rule 17(1) and 17(2) of PNDT Rules punishable under section 23 of the PCPNDT Act, the revision petitioner/accused, on each count, is sentenced to suffer rigorous imprisonment for 3 months apart from payment of fine of Rs.5,000/- and in default, to undergo further simple imprisonment for 1 month. All substantive sentences were directed to run concurrently by the learned trial Court, by this impugned judgment and order.
2. The revision petitioner/accused carried this judgment of conviction and consequent sentence imposed on her in Criminal Appeal bearing No. 57 of 2014, which ultimately came to be dismissed by the learned Additional Sessions Judge, Barshi, by the judgment and order dated 25th November 2015. That is how, the revision petitioner/accused is invoking revisional jurisdiction of this Court for challenging her conviction and resultant sentence for alleged contravention of the provisions of PCPNDT Act as well as PNDT Rules framed thereunder.
3. The revision petition came up for hearing of Criminal Application No. 66 of 2016 whereby the revision petitioner/accused has prayed for suspension of conviction recorded against her by the Courts below. Shri Kapadnis, the learned APP appearing for the respondents insisted that instead of deciding the application for suspension of sentence, the revision petition itself should be heard finally. The learned advocate for the revision petitioner/accused agreed for adopting this course of action. That is how, the revision petition was heard finally as record and proceedings were already called and available with this Court.
4. Heard Shri Mohite, the learned advocate appearing for the revision petitioner/accused. He argued that the revision petition needs to be allowed for the simple reason that the complaint, as framed and filed for alleged violation of the provisions of PCPNDT Act as well as PNDT Rules framed thereunder, was not maintainable as the same was not filed by the Appropriate Authority. It is argued on behalf of the revision petitioner/accused that the Appropriate Authority can authorize any person to lodge a complaint but the Appropriate Authority cannot appoint another person as Appropriate Authority under the PCPNDT Act. In the case in hand, PW5 Sub-Divisional O
