1. Complaint filed under Sections 23 and 25 of the PC and PNDT Act following an inspection of an ultrasound clinic by an Executive Magistrate. (Para 2 , 3 )
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2019 Supreme(SC) 762
SUPREME COURT OF INDIA
R. BANUMATHI, A.S. BOPANNA, JJ.
STATE OF ORISSA – Appellant(s)
VERSUS
MAMATA SAHOO & ORS. – Respondent(s)
CRIMINAL APPEAL No(s). 1055 OF 2019 (Arising out of SLP(Crl.) No(s).8124 of 2018)
Decided On : 16-07-2019
Important Points
IMPORTANT POINT
The appropriate Authority can nominate some Executive Magistrate to act on his behalf.
The appropriate Authority can nominate some Executive Magistrate to act on his behalf.
Subject
Criminal Law - PC and PNDT Act
Act Referred
Headnote
Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 - Section 28 - Act cognizance can be taken only on a complaint made by the Appropriate Authority concerned - District Magistrate being the appropriate authority, the inspection done by him cannot be said to be without authority/authorisation. (Para 7)
Facts of the case:
A joint inspection was conducted by the State and District team, Dhenkanal, in Ultrasound Unit of Shri Jagannath Hospital. It was found that the respondents had violated the provisions under Sections 3(2), 5 and 29 of the PC and PNDT Act which is punishable under Sections 23 and 25 of the said Act. For violation of PC and PNDT Act and Rule, the authorized officer of the Collector-cum-District Appropriate Authority, Dhenkanal, seized the ultrasound machine and other equipments from the said clinic. For such violation, the registration of ultrasound clinic of the respondents has been suspended. A complaint was filed against the accused-respondent under Section 28(2) of the PC and PNDT Act. The Trial Court took cognizance of offences punishable under Sections 3(2), 5, 29, 23 and 25 of the PC and PNDT Act and issued summons to the respondents.
The respondents filed the quash petition before the High Court to quash the said proceedings initiated against them which has been allowed.
Finding of the Court;
Impugned judgment cannot be sustained.
Result: Appeal allowed.
Legal Category Hierarchy
Advocates Appeared:
For the Petitioner(s):Ms. Anindita Pujari, Ms. Aarti Krupa Kumar, Mr. Om Naryan, Advocates
For the Respondent(s):Mr. Manish Mohan, Mr. Merusagar Samantaray, Advocates
For the Petitioner(s):Ms. Anindita Pujari, Ms. Aarti Krupa Kumar, Mr. Om Naryan, Advocates
For the Respondent(s):Mr. Manish Mohan, Mr. Merusagar Samantaray, Advocates
Table of Contents
2. Whether proceedings are sustainable when inspection is conducted by a nominated officer and whether the District Appropriate Authority can delegate its authority under the PC and PNDT Act. (Para 4 )
3. The District Appropriate Authority may nominate an Executive Magistrate to assist in monitoring the Act, and specific authorization for inspection was mentioned in the complaint. (Para 7 , 8 , 10 )
4. An Executive Magistrate nominated to assist the District Appropriate Authority is authorized to conduct inspections, and the validity of such authorization is a matter for trial. (Para 7 , 10 )
5. Appeal allowed; High Court order quashing the proceedings set aside; complaint restored to the Trial Court for further proceedings in accordance with law. (Para 11 )
6. Who is authorized to file a complaint for taking cognizance of offences under the PC and PNDT Act?
Cognizance can be taken only on a complaint made by the Appropriate Authority concerned, or any officer authorized in this behalf by the Central Government or State Government, or the Appropriate Authority. (Para 7 )
7. Can the District Appropriate Authority nominate other officers to assist in the implementation of the PC and PNDT Act?
Yes, the District Magistrate, acting as the District Appropriate Authority, may nominate an Executive Magistrate of the District to assist in monitoring the implementation of the PC and PNDT Act. (Para 7 )
8. Who is responsible for determining the correctness of an authorization order issued for an inspection under the PC and PNDT Act?
The correctness of an authorization order issued by the Appropriate Authority to an officer for conducting an inspection is a matter to be examined by the Trial Court. (Para 10 )
JUDGMENT
BANUMATHI, J.:
Leave granted.
(2) This appeal arises out of judgment and order dated 29.06.2017 passed by the High Court of Orissa, Cuttack, in CRLMC No.4845 of 2014 in and by which the High Court has quashed the summoning order issued against the respondents and also the complaint filed against them under Sections 23 and 25 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short, “PC and PNDT Act”).
(3) Briefly stated case of the prosecution is that on 28.05.2014 at 11:00 a.m., a joint inspection was conducted by the State and District team, Dhenkanal, in Ultrasound Unit of Shri Jagannath Hospital. It was found that the respondents had violated the provisions under Sections 3(2), 5 and 29 of the PC and PNDT Act which is punishable under Sections 23 and 25 of the said Act. For violation of PC and PNDT Act and Rule, the authorized officer of the Collector-cum-District Appropriate Authority, Dhenkanal, seized the ultrasound machine and other equipments from the said clinic. For such violation, the registration of ultrasound clinic of the respondents has been suspended vide order of the Collector dated 18.06.2014. A complaint was filed against the accused-respondent under Section 28(2) of the PC and PNDT Act. The Trial Court took cognizance of offences punishable under Sections 3(2), 5, 29, 23 and 25 of the PC and PNDT Act and issued summons to the respondents.
(4) Aggrieved by the issuance of the summons, the respondents filed the quash petition before the High Court under Section 482 of the Cr.P.C. to quash the said proceedings initiated against them on the ground that (i) Inspection was conducted by the Tehsildar on 28.05.2014 without any authorisation/authority; (ii) The District Magistrate is an Appropriate Authority under the PC and PNDT Act and as per the Office Memorandum No.19077/H of the Health and Family Welfare Department dated 27.07.2007, the District Magistrate cannot delegate its authority under the PC and PNDT Act and, therefore, the entire proceedings is not sustainable in law.
(5) The High Court quashed the proceedings initiated against the respondents on the ground that authorisation had not been granted by the District Magistrate-District Appropriate Authority, Dhenkanal, on 18.06.2014 for filing the complaint; but the inspection was conducted on 28.05.2014. The High Court held that on the date of inspection conducted by the Tehsildar, he had no authority to conduct the inspection. Referring to the Office Memorandum dated 27.07.2007, the High Court held that the District Magistrate-District Appropriate Authority may nominate the Executive Magistrate of the District only to assist him in monitoring and implementation of the PC and PNDT Act and cannot delegate the entire authority. On those findings, the High Court quashed the proceedings against the respondents as not sustainable in law.
(6) We have heard Ms. Anindita Pujari, learned counsel appearing for the appellant-State and Mr. Manish Mohan, learned counsel appearing for the respondents and also perused the impugned judgment and the evidence/materials on record.
(7) As per Section 28(1)(a) of the PC and PNDT Act cognizance can be taken only on a complaint made by the Appropriate Authority concerned. Section 28(1)(a) thereof reads as under:
“28. Cognizance of offences.- (1) No court shall take cognizance of an offence under this Act except on a complaint made by -
(a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority;”
As per Office Memorandum of the Health and Family Welfare Department dated 27.07.2007, the District Magistrate of each District is appointed as “District Appropriate Authority” for the each District under the PC and PNDT Act. As per the said Office Memorandum, the District Magistrate-District Appropriate Authority may nominate the Executive Magistrate of the District
