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2019 Supreme(HP) 1724
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ANOOP CHITKARA, J.
Urvashi Fakay and others - Petitioners
Versus
State of Himachal Pradesh - Respondent
Cr.MMO No.130/2016
Decided On : 26-07-2019
Advocate Appeared:
For the Petitioners:Mr. B.C. Negi, Senior Advocate with Mr. Nitin Thakur, Advocate.
For the Respondent:Mr. Ashwani K. Sharma and Mr. Nand Lal Thakur, Advocate
The main legal point established is that the absence of mens rea, lack of evidence of misuse, and compliance with registration requirements are crucial in determining violations of the PNDT Act.
Headnote:
PNDT Act - Violation of Rules - Rule 13, Rule 6(6) - Summary of Acts and Sections
Fact of the Case:
The accused, members of a family, were charged with violating Rule 13 and Rule 6(6) of the PNDT Act. The complaint alleged that the accused transported ultrasound machines from Delhi to Kullu in violation of the Act.
Finding of the Court:
The court found that there was no violation of Rule 13 as the machines were transported under a valid registration certificate. It also determined that the notice issued for suspension did not amount to ceasing to function, as required by Rule 6(6). The court noted the absence of mens rea and the lack of evidence of misuse of the clinic, as well as the previous dismissal of a related writ petition by the Supreme Court.
Issues: The issues revolved around the alleged violations of Rule 13 and Rule 6(6) of the PNDT Act, the absence of mens rea, and the impact of previous judicial decisions on the case.
Ratio Decidendi: The court held that the allegations did not constitute an offence, as there was no violation of the Act's purpose, no evidence of misuse, and no criminal intent. It also considered the impact of previous judicial decisions on the case.
Final Decision: The court quashed the orders of summoning and the complaint, as well as all consequential proceedings.
JUDGMENT :
Anoop Chitkara, J.
A pygmy proposition has swelled to a monstrous proportion, and the only way to consume a monster is limb by limb.
2. The accused have invoked the inherent powers of this Court, challenging the refusal of Sessions Judge to quash the issuance of process, in a complaint filed for violation of Rules 13, 6(6) of Pre-Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
3. This petition under Section 482 of the Code of Criminal Procedure, after now called as CrPC, is directed against the order dated 19.3.2016, passed by learned Sessions Judge, Kullu, District Kullu, HP, in Case Code No.0000017/2015 (Registration No.8/2015), titled as Urvashi Fakay versus State of Himachal Pradesh, whereby the learned Sessions Judge, had dismissed the petition against the order of summoning, dated 24.3.2015, passed by the learned Chief Judicial Magistrate, in the file of Complaint No.41-1/15, wherein he held that sufficient grounds exist to proceed against the accused persons under Rule 13, 6 Clause 6 of PC of Rules framed under Pre-Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (from now onwards referred to as ?PNDT Act?).
4. The accused are members of a family. Petitioner no. 1 is the wife of Petitioner no. 2 Dr. Sunil Fakey, who is a Radiologist and Petitioner no. 3 Dr. Y.C Fakey, is the fatherin- law of Petitioner no. 1, and he retired as Chief Medical officer, from the Government of H.P. (Ref: Annexures to the complaint).
5. The State of Himachal Pradesh, through District Appropriate Authority-cum- Chief Medical Officer, Kullu, filed a complaint in the file of Chief Judicial Magistrate, Kullu, against the present petitioners, for the violation Rule 13 and Rule 6 (6) of the PNDT Act. The complainant alleged that Urvashi Fakay, who is petitioner No.1 herein, had applied to District Appropriate Authority, Kullu (After now called DAA), for the registration of Ultrasound Clinic, in the name of ?FOURTH DIMENSION-An Ultrasound Clinic? at Kullu, H.P. The application was accompanied with the requisite fee and documents. Accordingly, the Chief Medical Officer proposed to inspect the ultrasound machines. On 15.12.2012, the Chief Medical Officer checked the proposed site for ultrasound clinic and observed that two machines that are being intended to be installed were purchased on 25.4.2006 and 21.9.2009 and further noticed that petitioner No.1 Urvashi Fakay had sought permission to transport these machines from Delhi to Kullu. It was observed in this letter that these machines were already in use in Delhi and petitioner No.1 was directed to place on record the registration of the previous installation along with N.O.C.s of Appropriate Authority at Delhi regarding the transportation of machines out of Delhi. It was further mentioned that once these formalities are completed, then the Chief Medical Officer be intimated for the inspection of the machines.
6. Vide letter dated 20.12.2012, petitioner No.1 forwarded the registration certificate of Delhi, to the Chief Medical Officer, stating that the NOC will be handed over within three months. Subsequently vide communication dated 3.1.2013 (Annexure P-5), the Chief Medical Officer informed the petitioner No.1 that in the meeting of the committee, held under the PNDT Act, it was unanimously opined that the NOC be brought from the Appropriate Authority. Vide another letter dated 19.3.2013 (Annexure P-6), petitioner No.1 was reminded to submit NOC as stated before. The complaint also contained the minutes of the meeting of the District Advisory Committee, under the Act, held on 7.5.2013, in which the issue of registration of the clinic was considered. The minutes contained all the transactions at Delhi, including the mode and manner, in which the machines were involved in a criminal matter at Delhi. After considering all the factual position, the committee advised the Appropriate Authority, Kullu to grant the registration
