Allowed

Dr Vijay S/O Pandurang Patil v. State of Karnataka

Karnataka HC14 Sept 2022CRL.P/102565/2022

Case brief

AI extract

What is this about?

The High Court allowed a criminal petition filed under Section 482 Cr.P.C. to quash proceedings instituted against a doctor for violations of the PCNDT Act. The court held that the complainant lacked proper authorization to file the charge-sheet and that natural justice mandates seeking an explanation from the defaulter before initiating criminal proceedings.

What did the court decide?

Proceedings in PC No.04/2016 dated 19.01.2016 were quashed; liberty reserved to complainant to proceed in accordance with law.

Dr Vijay S/O Pandurang Patil Vs… — Constitutional and Fundamental Rights | Karnataka HC (2022)

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CRL.P No. 102565 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON'BLE MS. JUSTICE J.M.KHAZI

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CRIMINAL PETITION NO. 102565 OF 2022 (482-)

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BETWEEN:

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DR. VIJAY S/O. PANDURANG PATIL, AGE. 57 YEARS, OCC. MEDICAL PRACTITIONER MANORAMA MATERINARY AND NURSING HOME, RAMLINGKHIND GALLI, BELAGAVI, TQ. AND DIST. BELAGAVI-590001.

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…ACCUSED/ PETITIONER

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(BY SRI. NEELENDRA D. GUNDE, ADVOCATE) AND:

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STATE OF KARNATAKA THROUGH DISTRICT APPROPRIATE AUTHORITY, PRE-CONCEPTION AND PRE NATAL DIAGNOSTICS, TECHNIQUE PROHIBITION OF SEX SELECTION (PCNDT), OF BELAGAVI, SUB DIVISION BELAGAVI, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING DHARWAD.

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TALUKA HEALTH OFFICER, BY SRI DR.SANJEEV S/O. RAJNATH NANDRE, AGE. 54 YEARS, OCC.TALUKA HEALTH OFFICER, BELAGAVI, R/O. 2502, SECTOR NO.12, INCOME TAX COLONY, MAHANTESH NAGAR, BELAGAVI, TQ. AND DIST. BELAGAVI-590001.

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…RESPONDENTS

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(BY SRI. GIRIJA S. HIREMATH., HCGP)

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CRL.P No. 102565 of 2022

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THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C., SEEKING TO QUASH THE ORDER DATED 19.01.2016 PASSED BY JMFC II BELAGAVI IN P.C. NO.04/2016 THEREBY REFERRING THE MATTER TO THE INVESTIGATION OFFENCES PUNISHABLE U/S. 29 RULE 9(1), 9(4), 9(6), 9(7) OF PRE NATAL DIAGNOSTIC TECHNIQUES RPM ACT 1994 IN SO FAR AS PETITIONER IS CONCERNED.

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THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, COURT PASSED THE FOLLOWING:

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ORDER

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Petitioner who is arraigned as accused has filed this petition under Section 482 of Cr.P.C to quash the criminal proceedings initiated vide order dated 19.01.2016 against her in PC No.04/2016 for the offences punishable under Sections 29 Rule 9(1), 9(4), 9(6), 9(7) of Pre-Natal Diagnostic Techniques (Regulation Prevention of Misuse) Act 1994 (for short “the Act”), so far as petitioner is concerned.

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It is the case of the petitioner that he is the Medical Practitioner running Manorama Metarnity and Nursing Home, Belagavi. On 11.01.2016, respondent No.2

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filed complaint in PC. No. 04/2016 on the file of JMFC-II Belagavi, against the petitioner alleging the offences punishable under Section 29 rule 9(1), 9(4), 9(6), 9(7) of the Act. In the complaint it is alleged that respondent No.2 is working as Taluka Health and Family Welfare Officer, Belagavi and he is the appropriate authority under the Act. While conducting survey of Genetic Counseling Centers and Ultra Sound Scanning Centers in Belagavi, he came to know that the petitioner’s hospital is in existence since 15 years and petitioner has also failed to maintain records as per the provisions of the Act. On 11.01.2016 at 7:30 p.m., complainant along with two others visited the hospital and found the infractions and filed the complaint.

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Respondents have appeared through High Court

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Government Pleader.

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During the course of the arguments learned counsel representing the petitioner submitted that the filing of the complaint is contrary to law, facts and material placed on record. The learned Magistrate ought not to

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have passed the impugned order referring the complainant to the Police for investigation, in the absence of authorization or competent order to file the complaint. Complainant has failed to produce the notification or order of authorization along with the complaint. It is only the Assistant Commissioner or Deputy Commissioner who are authorized to file the complaint.

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The learned counsel for the petitioner further submits that complainant being Government servant, the complaint ought to have been filed through the Public Prosecutor and not by a Private Advocate that too when he has not authorized by appropriate authority to represent the complainant or the Government authorization. The complaint has not complied with the mandatory directions given by the Hon’ble Supreme Court in Priyanka Srivatsava and Another Vs. State of Uttar Pradesh and Others¹ ( Priyanka Srivatsava’s Case ). As per the scheme of the Act Section 17(4), (a), 28 and 29 and rule 9

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1 (2015) 6 SCC 287

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provides that whenever there is any omission or commission in compliance of the Act or rules, the appropriate authority is required to seek explanation of the defaulter to find out whether there is any criminal intention in such violation. This provision is inserted with an intention that if there is any scope for correction, then the initiation of criminal proceedings could be dropped. Admittedly in the present case no such option is given to the petitioner and on these grounds seeks quashing of the proceedings.

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On the other hand learned High Court Government Pleader while admitting that the required procedure is not followed prays to reserve the liberty to the complainant to proceed in accordance with law.

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Heard the arguments and perused the records.

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As per the scheme of the Act, more particularly

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Section 28 of the Act, no Court shall take cognizance of the offence under this Act except on a complaint made by

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the appropriate authority or any officer authorized in this behalf by the Central Government or the State Government as the case may be or the appropriate authority. In the present case though respondent No.2 claims to be the authorized officer, he has not produced any documents to show that he is an authorized officer appointed by the appropriate authority. In the absence of such material, the complainant has failed to show that the complaint is by an appropriate authority or by an authorized officer.

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Admittedly, respondent No.2 is a Government

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official and he has filed the complaint in exercise of his official duty. Therefore he is suppose to file the complaint through the Public Prosecutor or the advocate through whom the complaint is filed is authorized by the Government or by the appropriate authority to file the complaint. However in the present case the complaint is being filed through a private advocate. Therefore the trial Court has erred in taking the cognizance.

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Whenever the violation of Sections 17(4)a, 28, 29 and rule 9 are alleged, provision is made for seeking explanation from the defaulter to find out whether there is any criminal intention in such violation and also to find out if there is any scope for correction. In other words an opportunity is required to be given to the defaulter to amend the mistakes committed and correct the records. A similar action was challenged on the ground of violation of principles of natural justice in the matter of Dr.Sai W/o. Santosh Shiradkar Vs. State of Maharashtra and Another² ( Dr. Sai’s Case ), on the file of the High Court of Judicature at Bombay at Aurangabad Bench and the proceedings were quashed and this order was up held by the Hon’ble Supreme Court in Special Leave to Appeal (Criminal) CRL.M.P. No.5636/2017 dated 17.04.2017. Thus from the above discussion I hold that the proceedings are liable to be quashed. However, it is necessary to reserve the liberty to the complainant to

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2 Criminal Writ Petition No.1381/2015

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proceed in accordance with law, if so advised and accordingly, I proceed to pass the following:

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ORDER

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Petition filed under Section 482 of Cr.P.C, is

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