Criminal proceedings may be quashed if the complaint lacks prima facie evidence of offences, particularly where the principal entity is not arraigned, impacting the legal tenability of charges.

ORDER :

1. Since the issues involved in both petitions are similar in nature and arise out of one and same complaint having connected facts, with the consent of learned advocate for both the sides, they are heard together and are being disposed of by this common order.

2 By way of the present petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for short, “the Cr.P.C.”), the petitioners seek to quash the Criminal Case No.433 of 2019 initiated before learned Additional Chief Judicial Magistrate at Talaja, District Bhavnagar and order below Exh. 1 dated 25.6.2019.

3. Learned advocate Mr. Aditya A. Choksi, appearing for the petitioners, seeks quashment of the process issued in Criminal Case No. 433 of 2019 instituted under Section 23 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short, “the Act of 1994”), alleging commission of offences under Sections 3 and 26 of the said Act read with Rule 3(3) (1) of the Rules framed thereunder.

3.1 He has primarily contended that the Panch Rojkam drawn by the complainant during the inspection of Samarpan General Hospital and Maternity Home (hereinafter referred to as “Samarpan”) does not disclose that any pre-natal diagnostic procedures or techniques were conducted or that any test, diagnostic or otherwise, was being carried out at the time of inspection.

3.2. Referring to Panch Rojkam (Page 35) in Criminal Miscellaneous Application No. 481 of 2020, it is submitted that one Dr. Bhupat D. Chopda, a certified BHMS practitioner, was merely examining a female patient. Although a sonography machine was found switched on in an adjacent room, there is no reference or indication of any diagnostic procedure or pre-natal test being conducted. Hence, even on a prima facie assessment, the essential ingredients of the alleged offences are not attracted.

3.3. It is further submitted that the Samarpan Seva Trust itself has not been arraigned as an accused. Instead, the trustees of the Samarpan Seva Trust, who can at best be vicariously liable, have been impleaded without the Trust—which runs the said hospital— being made a party. In the absence of arraigning the principal entity, i.e., the Samarpan Seva Trust, which falls within the definition of a 'company' under the Act, the prosecution against its trustees in their personal and individual capacity is not legally tenable. Therefore, the continuation of criminal proceedings against the petitioners suffers from manifest legal infirmity and deserves to be quashed.

3.4. Learned advocate Mr. Aditya A. Chokshi further submitted that, as per the Panch Rojkam, one Nitaben Gopalbhai Samnka was under medical examination; however, the Appropriate Authority failed to record her statement during the course of inquiry. This omission, it is submitted, vitiates the entire proceeding and renders the filing of the complaint against the petitioners nothing short of an abuse of the process of law.

3.5. He further contended that a Coordinate Bench of this Court, while adjudicating Special Criminal Application No. 9304 of 2022 concerning the release of the sonography machine seized by the Appropriate Authority in very same inspection, has made a specific observation to the effect that the petitioner, Dr. Bhupat D. Chopda, was examining a pregnant woman in the clinical room, whereas the sonography machine was located in an adjacent room. The Bench further noted that the petitioner was not performing any sonographic examination or pre-natal diagnostic test at the relevant time.

3.6. Such observations, according to learned advocate Mr. Choksi, carry substantial weight and go to the root of the matter, indicating that the petitioner was not involved in any activity prohibited under the provisions