The main legal point established in the judgment is the mandatory nature of recording pre-charge evidence before framing charges in a warrant case instituted otherwise than on a police report, as provided in Section 244 of the Code of Criminal Procedure.

Satish Kumar Mittal, J.

1. In this case, the question of law, which requires consideration, is:

"Whether charge can be framed against the accused person by the Judicial Magistrate in a warrant case, instituted otherwise than on a police report i.e. on the complaint filed by public servant in discharge of his official duty, without first recording the pre-charge evidence, as envisaged under Section 244 of the Code of Criminal Procedure?"

2. In this case, both the petitioners are qualified practising Doctors. Petitioner No. 1 is running a Scan Centre whereas petitioner No. 2 is practising as a Gyanacecologist. She is also running a Nursing Home. A complaint under Section 23 of the Pre-Natal Diagnostic Technique Regulation and Prevention of Misuse Act, 1994 (hereafter referred to as the Act) has been filed by the Senior Medical Officer, Incharge, Civil Hospital, Malerkotla, against the petitioners, on the allegations that on 17.3.2003, the complainant constituted a team, comprising of certain doctors, for the purpose of inspection of ultra sound scan centres running in Sub Division, Malerkotla. The said team inspected the genetic clinic of petitioner No. 1. During the inspection, they found that the petitioners had violated certain provisions of the Act. The Pre-Natal Diagnostic tests were found being carried out without ensuring the compliance of the provisions under Section 4(1), (2) and (3) of the Act. There was no proper record being maintained under the aforesaid Sections. The petitioners had no displayed the Certificate of Registration on the conspicuous place of its business. They even did not display a notice board in the local language on its premises stating that here pre-natal determination is not done and disclosure of the sex of fetus is prohibited. The petitioners were not maintaining the record as per Rule 9 of the Pre-Natal Diagnostic Technique (Regulation and Prevention of Misuse) Act, 1996.

3. Since the aforesaid complaint was filed by a public servant in discharge of his official duty under the Act, the Judicial Magistrate without after taking cognizance of the offence, summoned the petitioners without recording the statement of the complainant and his witnesses. Subsequently, the Judicial Magistrate, without recording any evidence, vide his order dated June 09, 2003, framed the charge against the petitioners under Section 23 of the Act, without recording any pre-charge evidence, as envisaged under Section 244 of the Code of Criminal Procedure (hereinafter referred to as the Code). The petitioners, at the time of framing the charge, had raised a legal objection that when a warrant case is instituted otherwise than on police report and the accused appear before the Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Thereafter on consideration of that evidence, the Magistrate has to apply his mind as to whether charge against the accused is to be framed or not. It was submitted that without applying this procedure, the Magistrate cannot frame charge against the accused.

4. The Sub Divisional Judicial Magistrate, Malerkotla, vide his order dated June 09, 2003, rejected this contention of the petitioners, while observing that the instant case is covered under Section 200 of the Code which provides that when a complaint is made in writing by a public servant acting or purporting to act in the discharge of his official duties, then the Magistrate need not to examine the complainant and the witnesses.

5. Against the said order, the petitioners filed revision petition, which was dismissed by Additional Sessions Judge, Sangrur while observing that a conjoint reading of first proviso to Section 200 of the Code and the provisions of Sections 27 and 28 of the Act makes it transparently clear that there is no illegality in the order passed by the learned trial Court and the necessity of recording the statement of the complaina