Allowed

Dr Jayanthi R v. State of Karnataka

Karnataka HC16 Jun 2023WP/3016/2023

Case brief

AI extract

What is this about?

The Karnataka High Court allowed a writ petition seeking quashing of criminal proceedings against a doctor initiated under the PNDT Act. The Court held that the authority filing the complaint lacked jurisdiction as the power to institute proceedings was temporally limited and expired before the filing. The proceedings were quashed, and the seized scanning machine was directed to be released.

What did the court decide?

The impugned proceedings in C.C.No.3014 of 2022 were quashed. The respondents were directed to release the seized scanning machine immediately. The State was granted liberty to initiate fresh proceedi

Dr Jayanthi R Vs State of Karnataka — Quashing and FIR | Karnataka HC (2023)

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NC: 2023:KHC:20936 WP No. 3016 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 3016 OF 2023 (GM-RES)

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BETWEEN:

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DR. JAYANTHI R., D/O RADHAKRISHNA SETTY AGED ABOUT 55 YEARS HAVING ADDRESS AT SRI RAMAKRISHNA NURSING HOME SIRA ROAD PAVAGADA – 561 202.

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…PETITIONER

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(BY SRI. R.KIRAN, ADVOCATE)

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AND:

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STATE OF KARNATAKA REPRESENTED BY

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001.

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DEPUTY COMMISSIONER DC OFFICE, MINI VIDHANA SOUDHA TUMAKURU – 571 101.

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DISTRICT APPROPRIATE AUTHORITY (DAA) UNDER PC AND PNDT, DISTRICT HEALTH AND FAMILY WELFARE OFFICER

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NC: 2023:KHC:20936 WP No. 3016 of 2023

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TUMKURU REP. BY DISTRICT NODAL OFFICER AND DISTRICT HEALTH AND FAMILY WELFARE OFFICER DR. D.N.MANJUNATH HAVING ADDRESS AT DISTRICT HEALTH AND FAMILY WELFARE OFFICE OLD NH-4 ROAD, IN FRONT OF AMANIKERE PARK TUMAKURU – 572 101.

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…RESPONDENTS

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(BY SMT. K.P.YASHODA, HCGP FOR R-1 AND R-2 R-3 SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C., PRAYING TO QUASH THE PROCEEDINGS IN C.C.NO. 3014/2022 PENDING BEFORE THE HONBLE PRINCIPAL CIVIL JUDGE AND J.M.F.C., PAVAGADA UNDER SECTION 23, 23(1), 23(2), 20(1), 20(2), 20(3) OF PRECONCEPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES (PROHIBITION OF SEX SELECTION) ACT, 1994 AND ALL CONSEQUENT PROCEEDINGS THERETO AT ANNEXURE-A AND PROCEEDINGS IN P.C.R.NO. 78/2022 BEFORE THE HONBLE PRINCIPAL CIVIL JUDGE AND J.M.F.C., PAVAGADA UNDER SECTION 23, 23(1), 23(2), 20(1), 20(2), 20(3) OF PRECONCEPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES (PROHIBITION OF SEX SELECTION) ACT, 1994 IN SO FAR AT THE PETITIONER HEREIN (ACCUSED NO.1) AT ANNEXURE-B.

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THIS WRIT PETITION, COMING ON FOR ADMISSION,

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THIS DAY, THE COURT MADE THE FOLLOWING:

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3 - NC: 2023:KHC:20936 WP No. 3016 of 2023

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ORDER

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The petitioner is before this Court calling in question proceedings in C.C.No.3014 of 2022 pending on the file of the Principal Civil Judge and JMFC, Pavagada arising out of P.C.R.No.78 of 2022 filed by the 3^rd respondent under Section 200 of the CrPC alleging offences punishable under Sections 23, 23(1) & (2), 20(1), (2) & (3) of the Pre-Conception and PreNatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (‘the Act’ for short).

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2. Facts in brief germane are as follows:-

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The petitioner is a Medical Practitioner specialized in Obstetrics and Gynaecology and claims to be having three decades of practice at Pavagada Town, Tumkur District and is registered with the Karnataka Medical Council. The petitioner claims to be practicing at her hospital, Sri Ramakrishna Nursing Home, Pavagada and the said hospital is also registered under Section 18 of the Act. On 18-10-2022 certain persons claiming to be members of National Inspection and Monitoring Committee (‘the Committee’ for short) visit the hospital of the

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4 - NC: 2023:KHC:20936 WP No. 3016 of 2023

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petitioner and after inspection, the Committee is said to have alleged certain irregularities in the functioning of the hospital and directs the 3^rd respondent/Appropriate Authority under the

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Act to seize and seal records of the petitioner/hospital. The Committee directed issuance of notice to the petitioner calling for explanation with regard to the violations found during inspection. Contrary to the communication, the 3^rd respondent does not issue any notice, but initiates proceedings by registering a crime on 17-11-2022 invoking Section 200 of the CrPC r/w Section 28 of the Act. The complaint narrates irregularities as alleged by the Committee. The learned Magistrate takes cognizance of the offence and registers a crime in C.C.No.3014 of 2022. It is taking of cognizance by the learned Magistrate that drives the petitioner to this Court in the subject petition.

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Heard Sri R.Kiran, learned counsel appearing for the petitioner and Smt. K.P.Yashoda, learned High Court Government Pleader appearing for respondents 1 and 2.

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5 - NC: 2023:KHC:20936 WP No. 3016 of 2023

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The learned counsel appearing for the petitioner would contend that the 3^rd respondent had no authority to institute the complaint on the date of filing of the complaint as Appropriate Authority has to be appointed under Section 17(2) of the Act who alone would be empowered to file a complaint under Section 17(4)(e) r/w Section 28 (1)(a) of the Act. The 2^nd respondent who claims to be the Appropriate Authority in terms of Official Memorandum dated 13-10-2022 could not have delegated the power to respondent No.3 and that the 3^rd respondent instituted the complaint beyond the period of such delegation by the 2^nd respondent. It is on the question of jurisdiction inter alia the petitioner is before this Court.

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The other ground that the learned counsel for the petitioner would urge is that the 3^rd respondent has no power to seek condonation of delay to institute a private complaint since he is not the Appropriate Authority. The filing of the complaint is also hit by Section 468 of the CrPC, as the complaint is filed with a delay of 22 days qua the maximum punishment that is imposable for the offences alleged.

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6 - NC: 2023:KHC:20936 WP No. 3016 of 2023

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The learned High Court Government Pleader would, however, refute the submissions to contend that the Committee inspected the hospital and when it did not find answers that were satisfactory, seized all the materials, as according to the allegation there was no register maintained by the hospital with

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regard to tests that were undertaken. If only the register was maintained, the Committee would not have taken a drastic step of seizing the materials.

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Insofar as empowerment of the 3^rd respondent to register a complaint is concerned, the learned High Court Government Pleader would submit that on the date of filing of the complaint, the respondent had no authority to file the complaint, as there is no notification delegating powers to the respondent to file the complaint. With regard to the delay in registering the crime, the delay will have to be calculated from the date of inspection till the date of registration of the complaint and not the order taking cognizance.

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The learned counsel for petitioner submits that the scanning machine belonging to the petitioner has been seized.

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* Page No.6 is re-typed and replaced vide Court order dated 07.07.2023

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7 - NC: 2023:KHC:20936 WP No. 3016 of 2023

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He would submit that the application be considered for release of the scanning machine, in the light of the fact that grave prejudice is caused to the general public due to the lack of scanning machine in the hospital which is not available anywhere in the adjacent area. He would submit that he would abide by any conditions that would be imposed by this Court for such release. The learned counsel has also offered to file an affidavit. In furtherance of the said submission, he has filed an affidavit as well.

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Owing to the aforesaid circumstance and in public interest, I deem it appropriate to allow the application and direct release of the machine to the hands of the petitioner, subject to the petitioner adhering to the undertaking in the affidavit.

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A perusal at the records would indicate that the Authority who has instituted the proceedings did not have the

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power to do so as on the date of such initiation. Power

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* Page No.7 is re-typed and replaced vide Court order dated 07.07.2023

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8 - NC: 2023:KHC:20936 WP No. 3016 of 2023

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necessary to initiate such proceedings was delegated to him only for a specified period between 17.10.2022 to 19.10.2022. Therefore, the respondent did not have power to initiate the proceedings on the day that it is initiated. The petition deserves to succeed on the said ground of lack of competence. This would not mean that proceedings cannot be initiated against the petitioner, if the delegation has been extended beyond the said period and the power to initiate proceedings is available at this juncture.

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Reserving such liberty to the State to initiate

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proceedings in accordance with law and if necessary, I deem it appropriate to pass the following:

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O R D E R

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(i) Writ Petition is Allowed.

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(ii) Impugned proceedings in C.C.No.3014 of 2022 before the Hon’ble Principal Civil Judge and J.M.F.C., pavagada stands quashed.

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* Page No.8 is re-typed and replaced vide Court order dated 07.07.2023

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9 - NC: 2023:KHC:20936 WP No. 3016 of 2023

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(iii) The respondents are directed to release the machine/s forthwith.

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(iv) The 1^st respondent/State is at liberty to initiate such proceedings in accordance with law.

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Consequently, I.A.No.1 of 2023 stands disposed.

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Sd/JUDGE

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bkp/CT:SS

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Page No.9 is re-typed and replaced vide Court order dated 07.07.2023

Dr Jayanthi R v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Dr Jayanthi R v. State of Karnataka

Case brief

What is this about?

What did the court decide?

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