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2020 Supreme(Bom) 1452
IN THE HIGH COURT OF BOMBAY
Prithviraj K. Chavan, J.
Mohankumar Bandopant Nagane - Appellants
Vs.
State of Maharashtra and Ors. - Respondent
Criminal Revision Application No. 69 of 2014
Decided On : 27-11-2020
Advocate Appeared:
For the Appellant : Abhijeet A. Desai and Vrushali Maindad
For the Respondents: S.V. Sonawane, APP, Deepak More and Aishwarya D. More
The main legal point established in the judgment is the imperative nature of statutory requirements and the specific manner in which actions should be taken under the PCPNDT Act.
Headnote:
PCPNDT - Criminal Conviction - Section 23, Section 5(1)(b) and (c), Section 5(2), Section 6, Rules 9(1), (4), (8), Rule 10(1-A) - The court discussed the revisional powers invoked under Section 401 of the Criminal Procedure Code challenging the conviction and sentencing under the PCPNDT Act. The court highlighted the lack of appropriate authority and the failure to follow the prescribed procedure for initiating the complaint. The judgment emphasized the imperative nature of statutory requirements and the specific manner in which actions should be taken under the PCPNDT Act. It also referenced a recent Supreme Court judgment emphasizing the importance of maintaining records as required by the Act and the serious issue of female foeticide and infanticide.
Fact of the Case:
The applicant, a radiologist, was convicted and sentenced for contravention of the PCPNDT Act based on a complaint made by the Medical Director of Pimpri Chinchwad Municipal Corporation. The complaint alleged that the applicant disclosed the sex of a foetus and accepted an amount without issuing a receipt. The applicant challenged the conviction, arguing that the complainant was not the appropriate authority and that the complaint did not follow the prescribed procedure.
Finding of the Court:
The court found that the complainant was not appointed as the appropriate authority at the time of the alleged offence, and therefore, lacked the authority to initiate the complaint. It also found that the complaint did not follow the prescribed procedure for initiating a complaint under the PCPNDT Act. The court emphasized the imperative nature of statutory requirements and the specific manner in which actions should be taken under the Act.
Issues: The key issues were the lack of appropriate authority for initiating the complaint and the failure to follow the prescribed procedure for initiating a complaint under the PCPNDT Act.
Ratio Decidendi: The court held that the lack of appropriate authority and the failure to follow the prescribed procedure for initiating a complaint under the PCPNDT Act were fatal to the case. It emphasized the imperative nature of statutory requirements and the specific manner in which actions should be taken under the Act.
Final Decision: The court quashed and set aside the impugned order of conviction and acquitted the applicant of the charges.
ORDER :
Prithviraj K. Chavan, J.
1. Rule.
Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the applicant and the respondents.
2. The revisional powers of this Court have been invoked by the applicant/accused under Section 401 of the Criminal Procedure Code challenging the concurrent findings of the trial Court as well as the lower Appellate Court convicting and sentencing him under the Preconception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as "PCPNDT" Act for short).
3. Shorn of unnecessary details, a few facts germane for disposal of this application can be summarized as follows.
4. The applicant has been convicted and sentenced by the learned Judicial Magistrate, First Class, Court No. 7, Pune by order dated 15th December 2011 in Regular Criminal Case No. 139 of 2006, which reads as under:-
"ORDER
(1) Accused is hereby convicted for the offence punishable under Section 23 for contravention of Sec. 5(1)(b) and (c) of the Preconception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, vide Sec. 248(1) of Cr.P.C. and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- i/d to suffer R.I. for one month.
(2) Accused is also convicted for the offence punishable under section 23 for contravention of Sec. 5(2) and Sec. 6 of the Preconception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 5,000/- i/d to suffer R.I. for three months.
(3) Accused is further convicted for the offence punishable under section 23 for contravention of Rules, 9(1), (4), (8) and Rule 10 (1-A) of the Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- i/d to suffer R.I. for one month.
(4) Accused shall surrender his bail bonds.
(5) The substantive sentences to run concurrently.
(6) The muddemal i.e. documentary evidence be preserved till the conclusion of appeals. Further the cash amount of Rs. 3,000/- be returned to Smt. Kiran Moghe (P.W. 2), after the appeal period is over and if appeal is preferred, then subject to its decision.
(7) Copy of judgment be given to the accused free of costs."
5. An appeal preferred by the applicant before the learned Additional Sessions Judge, Pune being Criminal Appeal No. 23 of 2012 also came to be dismissed by judgment and order dated 7th December, 2013.
6. The complainant is a Medical Director of Pimpri Chinchwad Municipal Corporation, Pimpri, Pune and is also a competent Authority under Section 17 of the PCPNDT Act. The applicant is qualified as a M.B.B.S, M.D. (Radiologist) who was then working as an Administrative Medical Officer at Chest Hospital, Aundh, Pune. He was also practicing at Shop No. 10 situated in the building namely Mira Classic, Santosh Nagar, Thergaon, Pune 33. The applicant was also appointed as a member of Advisory Committee under the PCPNDT Act.
7. It is the case of the complainant that the member of the Advisory Committee, Pune District and an Activist of "Tathapi" Trust namely; Smt. Audry Fernandes came to know that the applicant conducts Sonography and discloses sex of the foetus by charging some amount in contravention of the provisions of the PCPNDT Act. Accordingly, on 4th January, 2006 at about 2.30 p.m., Audry Fernandes called the complainant - Dr. Rajshekhar Iyer at Kalewadi Phata, Aundh. The complainant along with the members of the Advisory Committee namely; Dr. Kamal Yadav and Dr. Dilip Kamat went to the Sonography Centre of the applicant. They were accompanied by the police officials of Wakad Police Station. A decoy patient namely, PW-4 Devika Gaikwad, PW-3 Smt. Saraswati Bhandirge, who is also an Activist of Akhil Bhartiya Janwadi Mahila Sanghatna, PW-2 Kiran Moghe, a Social Worker, Smt. Kalind
