Allowed

Dr. Kushal Pal Deshwal v. State of U.P. and Another

Allahabad HC10 Jul 2019A482/22655/2015

Case brief

AI extract

What is this about?

The High Court directed the quashing of criminal proceedings under the Pndt Act initiated against the applicant. The Court held that since the District Magistrate's original order was set aside by an appellate court and a fresh order restored the applicant's license, there was no basis for the prosecution to continue.

What did the court decide?

Proceedings of Complaint Case No. 3241/9 of 2015 under Sections 23 and 25 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, P.S. Shamli, District Muza

Dr. Kushal Pal Deshwal Vs State of U.P… — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 65

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Case :- APPLICATION U/S 482 No. - 22655 of 2015

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Applicant :- Dr. Kushal Pal Deshwal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sanjay Kumar Dubey,Nipun Singh Counsel for Opposite Party :- Govt. Advocate

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Hon'ble Dinesh Kumar Singh-I,J.

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Heard Sri Nipun Singh, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for the State.

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This application under Section 482 Cr.P.C. has been filed with a prayer to quash the entire proceeding of Complaint Case No. 3241/9 of 2015 (Dr. Bhanu Prakash Vs. Dr. Kushal Pal Deshwal) under Sections 23 and 25 of PreConception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, P.S. Shamli, District Muzaffar Nagar pending in the Court of Chief Judicial Magistrate, Muzaffar Nagar.

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Learned counsel for the applicant has stated that the Complaint Case No. 3241/9 of 2015 was initiated against him by filing a Complaint on 7.04.2015 pursuant to the order of D.M. dated 2.04.2015 whereby the reply to the notice issued to the applicant to show cause as to why license of his hospital be not cancelled was rejected and Dr. Bhanu Prakash, Nodal Officer was directed to initiate prosecution against the accused applicant. This order was challenged by the accused applicant before the Appellate Authority which passed an order dated 30.06.2015 in which appeal was allowed and the order dated 2.04.2015 was set-aside and it was directed that competent authority shall decide the matter afresh on merits after giving opportunity to the accused applicant within a period of two months. Pursuant to the said order, the matter was reconsidered by the D.M., Shamli vide order dated 02.09.2015 which is annexed with Stay Application. In the said order, it has been recorded that before conducting the raid, no prior permission was sought from the appropriate authority, therefore Ultrasound Machine which were directed to be sealed, were wrongly sealed. It is further mentioned in the said order that C.M.O. was required to conduct the raid/inspection after seeking permission from

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competent authority under the provisions of PreConception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and a report of the same ought to have been provided to the Competent Authority but the said procedure was not followed. On 26.03.2015 at the time of inspection, the accused applicant was conducting Ultrasound of the pregnant ladies on his own and has not made any O.P.D. Register which is against the rules. The Form 'F' for the month of January, 2015 was not provided and irregularities were found therein. Information with respect to Ultrasound Machine being not in proper condition was required to be given to Competent Authority which was not given as per rules. Thereafter D.M. has taken decision that the registration of the Ultrasound Centre would be treated as suspended with effect from 2.04.2015 and strict warning was issued to the accused applicant to maintain all record in appropriate manner in accordance with the provisions of the PreConception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. Ultrasound Machines were released and the Registration of Ultrasound Centre was restored. In the light of the above facts when the basis of initiating the complaint has already been set-aside, the Criminal Proceeding in this case cannot be allowed to continue. Learned counsel for the applicant has also placed reliance upon the judgement of Hon'ble Supreme Court in Voluntary Health Assn. of Punjab Vs. Union of India (2016) 10 SCC 265 wherein in para 46 observation was made by the Hon'ble Apex Court that the Form F is being misused and misinterpreted by the authorities which is causing harassment to the medical professionals all over the country and that guidelines are required to be laid down by the State.

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Learned A.G.A. has vehemently opposed the prayer of quashing and has drawn the attention of this Court towards para 3 and 4 of the counter-affidavit in which it is stated that in compliance with the order dated 30.06.2015 passed by the Appellate Tribunal, the Present District Magistrate, Shamli vide his order dated 2.09.2015 has directed for opening of seal and also passed the order for maintaining registration of the Ultrasound Machine. It is further argued that the order dated 2.09.2015 is administrative in nature and by the operation of the order dated 2.09.2015, the offence committed by the accused applicant cannot be

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washed out and as such, only the clinic was ordered to be again operational by the said order but that would have no bearing on the criminal prosecution.

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I do not agree with the arguments made by the learned A.G.A. and am of the opinion that when the initial order passed by the District Magistrate dated 2.04.2015, has been set-aside by the appellate court's order dated 30.06.2015 and the D.M. was directed to pass a fresh order and in pursuance of that D.M. has passed a fresh order dated 2.09.2015 in which he has chosen to only direct the accused applicant to maintain his record in appropriate manner in accordance with the above Act and has restored the licence, there does not remain any reason to allow the Criminal Prosecution to continue.

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In view of the above facts, this application under Section 482 Cr.P.C. is allowed and proceeding of Complaint Case No. 3241/9 of 2015 under Sections 23 and 25 of PreConception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, P.S. Shamli, District Muzaffar Nagar is hereby quashed.

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Order Date :- 10.7.2019 A. Mandhani

Dr. Kushal Pal Deshwal v. State of U.P. and Another

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Dr. Kushal Pal Deshwal v. State of U.P. and Another

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