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RAJASTHAN HIGH COURT
M.N. Bhandari, J.
Dr. Ashish Singhal —Petitioner
versus
State of Rajasthan & Anr. —Respondents
S.B. Criminal Misc. Petition No.2462 of 2013
Decided on 4.12.2014
Counsel for the Parties:
For the Petitioner: Mr.Vijay Choudhary
For the Respondents:Mr.G.S.Gill, Additional Advocate General with Mr.H.C.Kandpal, Mr.Sudesh Saini, Public Prosecutor
IMPORTANT POINTS
(1) Complaint for offence under the Pre-conceptional and Prenatal Diagnostic Techniques Act can be filed by the Appropriate Authority or authorised officer and section 28 of the Act does not mandate that authorised officer should be in possession of qualifications provided for the Appropriate Authority.
(2) The requirement to sent form “F” by 5th day of every month does not absolve requirement to fill it on the same day.
Headnote:Pre-conceptional and Prenatal Diagnostic Techniques Act, 1994 — Section 17, 26 and 28 — Order of framing of charge for offence under — Petition challenging order plea that inspection and complaint could be filed only by appropriate authority — Provision of section 17 of the Act did not provide that inspection could not be caused by authorised officer — Complaint could be filed by Appropriate Authority or authorised officer — Authorised officer need not be in possession of qualifications provided for Appropriate Authority. (Paras 9 & 10)
ii. Pre-conceptional and Prenatal Diagnostic Techniques Act, 1994 — Section 17, 26 & 28 — Petition challenging order on framing of charge for offence on ground that form ‘F’ was required to be filled immediately on the day of diagnose but could be filled on or before 5th of the month when it was to be submitted — Contention was contrary to the object of the Act — If form ‘F’ is not filled on the same date of diagnose, it is to be considered a commission of offence. (Paras 15 & 16)
Result: Petition dismissed.
ORDER
M.N. Bhandari, J.—By this criminal misc. petition, a challenge is made to the order dated 19th January, 2013 framing charges so as the order dated 28th June, 2013, dismissing the revision petition filed by the petitioner.
2. Learned counsel submits that inspection so as the filing of complaint is not by the appropriate authority, thus was not maintainable. As per Section 17 (4)(c) of Pre-conceptional & Prenatal Diagnostic Techniques Act, 1994 (for short “Act of 1994”), an inspection and complaint can be filed only by the appropriate authority. In the instant case, the inspection was caused by an officer/committee and even complaint was filed thereupon by the officer, who was not having required qualification as provided under Section 17 of the Act of 1994. In view of above, framing of charges against the petitioner for offence under Section 17 of the Act of 1994 is illegal. The petitioner deserves to be discharged.
3. Learned counsel further submits that allegation against the petitioner was for not filling form “F”, however, it is in ignorance of the fact that form “F” is not required to be filled immediately on the day of diagnose but can be filled on or before 05th of the month, when it is to be submitted.
4. A reference of judgment of Bombay High Court in the case of Dr.Tushar Rangrao Patil Vs. Appropriate Authority, Nanded & Additional Collector, Nanded in Criminal Writ Petition No.406/2011 decided on 02nd May, 2012 has been given wherein the same issue was considered and decided. In the light of the judgment aforesaid also, lapse in filing form “F” cannot make out a case for framing of charges for the offence under the Act of 1994. Thus, the impugned order deserves to be set aside.
5. Lastly, learned counsel for the petitioner submitted that when the provision mandates for the procedure to be taken in a particular manner, it cannot be ignored and if procedure is violated, the Court should interfere.
6. A reference of judgment in the case of State of U.P. Vs. Singhara Singh & Ors., AIR 1964 SC 358 has also been given.
7. I have considered the submissions made by learned counsel and scanned the matter carefully.
8. The first argument of learned counsel is in reference to Section 17 of the Act of 1994, thus it would be gainful to quote the aforesaid provision :
“17. Appropriate Authority and Advisory Committee.- (1) The Central Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for each of the Union territories for the purposes of this Act.
(2) The State Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for the whole or part of the State for the purposes of this Act having regard to the intensity of the problem of pre-natal sex determination leading to female foeticide.
(3) The officers appointed as Appropriate Authorities under subsection (1) or sub-section (2) shall be,—
(a) when appointed for the whole of the State or the Union territory, of or above the rank of the Joint Director of Health and Family Welfare; and
(b) when appointed for any part of the State or the Union territory, of such other rank as the State Government or the Central Government, as the case may be, may deem fit.
(4) The Appropriate Authority shall have the following functions, namely:—
(a) to grant, suspend or cancel registration of a Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic;
(b) to enforce standards prescribed for the Genetic Counselling Centre, Genetic Laboratory and Genetic Clinic;
(c) to investigate complaints of breach of the provisions of this Act or the rules made thereunder and take immediate action; and
(d) to seek and consider the advice of the Advisory Committee, constituted under sub-section (5), on application for registration and on complaints for suspension or cancellation of registration.
(5) The Central Government or the State Government, as the case may be, shall constitute an Advisory Committee for
