D.H.WAGHELA, J. By these References, learned single Judge has referred the following issues for consideration and opinion :

"(i) Whether under the provisions of Sec. 28 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, a Court can take cognizance of an offence under the Act on a complaint made by any officer authorised in this behalf by the appropriate authority?

(ii) Whether the provisions of the proviso to sub-sec. (3) of Sec. 4 of the P.N.D.T. Act require that the complaint should contain specific allegations regarding the contravention of the provisions of Secs. 5 and 6 of the Act?

(iii) Whether the burden lies on the authority to prove that there was contravention of the provisions of Sec. 5 or 6 of the P. N. D. T. Act?

(iv) Whether any deficiency of inaccuracy in filing Form-F as required under the statutory provisions is merely a procedural lapse?"

2. Above issues have come to be referred on account of the learned single Judge not agreeing with the following observations and conclusions expressed by another learned single Judge in Dr. Manish C. Dave v. State of Gujarat, 2008 (1) GLR 239 : 2008 (1) GLH 475 :

"10. .... Therefore, the complaint should be filed by appropriate authority or any officer authorised in this behalf by the Central Government or State Government and the 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. Admittedly, the complaints were not filed by Appropriate Authority or any officer authorised in this behalf. There is nothing on record to show that the persons who have filed the complaints have given notice as per Sec. 28(b) of the Act. In view of these facts, I am of the view that the complaints become bad in law.

"15. From a bare perusal of the complaints, it is apparent that it is not the case of the authority that provisions of Sec. 5 or 6 are applicable inasmuch as the authority has not been able to show or even alleged that (i) any pregnant woman or her relative or any other persons has been communicated the sex of foetus by the petitioners, or (ii) at any place and by any person, including the person conducting ultra-sonography, there has been either sex determination or sex selection. In absence of such specific allegations in the complaint, it cannot be said that provisions of Sees. 5 and 6 of the Act would be attracted.

16. Reading the proviso to Sec. 3, it is to be presumed that the deficiency or inaccuracy in the record would amount to contraventions of the provisions of Sec. 5 or Sec. 6 of the Act. As a natural consequence, in view of such deficiency or inaccuracy, there should be allegation of contravention of provisions of Sees. 5 and 6 of the Act. In the present case, there are no specific allegations in the complaint pertaining to the provisions of Sees. 5 and 6. Apart from that, the language of Sees. 5 and 6 is prohibitory in nature, and therefore, the burden of proof will be on the authority to prove that there was contravention, and thereupon to rely on the provisions of Statutory Form-F for filing criminal complaint.

18. As far as Sec. 4(3) is concerned, it is the case of the petitioners that the register is maintained with all the columns which fall within the four corners of the duties and functions of the petitioners. Apart from that, no opportunity is afforded to the petitioners to prove contrary and put up their case. Further, such deficiency or inaccuracy, at least so far as the present proceedings are concerned, is merely a procedural lapse, which do not in any manner contravene the provisions of Sees. 5 and 6 of the Act.

19. In view of the above, when it is not established that there is contravention of the provisions of Sees. 5 or 6, the contention regarding any inaccuracy or deficiency in Form-F will not be applicable, and therefore, the complaints themselves are not maintainable. I am, the

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