M/S Kamboj Ultrasound and Diagnostic and Ors. Vs State of Haryana

The present revision petition has been filed impugning the judgment dated 09.08.2008 passed by Sessions Judge, Hisar, whereby the appeal filed against the judgment of conviction and order of sentence dated 09/10.01.2008 passed by the Chief Judicial Magistrate, Hisar, has been partly accepted with modification.

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The complaint in the present case came to be instituted on 21.12.2006. The judgment of conviction and order of sentence was passed on 09/10.01.2008 by the Chief Judicial Magistrate, Hisar. The Appeal filed against the judgment of conviction and order of sentence was partly accepted with modification on 09.08.2008. The instant revision petition was filed on 12.08.2008 and has come up for final

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CRR-1499-2008 (O & M)

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hearing now i.e. after a period of 19 years from the date of institution of the FIR.

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The brief facts are that the complaint was filed on behalf of the State of Haryana through the District Appropriate Authority-cumCivil Surgeon, Hisar who was stated to have been appointed as the District Appropriate Authority under Section 17 (2) of the PreConception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter to be referred as ‘PC and PNDT Act’) and as amended by Amendment Act, 2002 (14 of 2003) and Rules, 1996 (hereinafter referred as PNDT Act) vide notification No.1/18/88/2HB-II97 dated 18.09.1997 for alleged deficiencies in maintenance of records resulting into contravention of section 4(3) and 5 (1)(b) read with Rule 9 punishable under Section 23 of the Act.

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It is the case of complainant that M/s Kamboj Ultrasound and Diagnostic Pvt. Ltd, Hisar was a registered Genetic Clinic under Section 3 of PNDT Act having Registration No.27 granted on 31.10.2001. Accused/respondents No. 2 and 3 were both Directors/Qualified/Competent and responsible persons on behalf of accused/respondent No. 1 and they were In-charge and responsible for M/s Kamboj Ultrasound and Diagnostic Pvt. Ltd. Hisar for the conduct of its business. On 06.10.2006, the District Nodal Officer (PNDT) requested the complainant with reference to a news clipping on Channel IBN-7 and Newspapers Dainik Jagran & Dainik Bhaskar. On the basis thereof, the complainant constituted a team consisting of Dr. R.P.

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CRR-1499-2008 (O & M)

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Singhal, Dr. Himani Kansal & District Nodal Officer (PNDT), Dr. Ashok Chaudhary and directed them to proceed further. On the same day, the premises of the accused was inspected. A spot memo was prepared of the seized records which were anti-natal register comprising from Page No. 535 onwards having records from 25.08.2006 to 05.10.2006 and original form F with referral slips for the month of September and October 2006. The team also sealed four ultrasound machines in the premises of accused on the same day. Spot memo and seizure memo were prepared. From a perusal of the seized records, it was found that prima-facie there was a gross contravention of the provisions of the PNDT Act and as such, registration of the accused was suspended under Section 23 of the Act vide letter dated 18.10.2006. The accused were also asked not to engage in any activity under the Act till further orders. Thereafter, a show cause notice dated 18.10.2006 was issued to the accused No.2 and 3. They submitted a reply to the show cause notice vide letter dated 24.10.2006. As per the request of the accused, personal hearing was given to them on 24.10.2006. It is further detailed in the complaint that from the perusal of records seized on 06.10.2006 from the premises of the accused, it was found that there were multiple violations of Form F in the records. In fact, Form F which was maintained by the accused were not in the prescribed manner as provided in Rule 9(4) of the PNDT Act. All Form F bore the signature of a person who was not an authorized sonologist under PNDT Act. The accused No.2 and 3 had not signed the form F. Since the accused had contravened the provisions of the PNDT Act and

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CRR-1499-2008 (O & M)

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Rules by not maintaining records as required under the Act, the accused had committed offences under Section 4 (3) and 5(1)(b) which were punishable under Section 23 of PNDT Act and had also violated Section 29 read with Rule 9 punishable under Section 23 of the PNDT Act.

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On notice, accused No.2 and 3 appeared and were admitted to bail.

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After recording the statement of Dr. S.K. Naval District Appropriate Authority, in pre-charge evidence of the complainant, the accused were charge-sheeted under Section 4(3) and 5(1)(b) read with Rule 9 of PNDT Act which is punishable under Section 23 of PNDT Act, to which, they pleaded not guilty and claimed trial.

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After framing of charge, PW-1 Dr. S.K. Naval District Appropriate Authority was recalled for the purpose of cross-examination, Besides this, PW-2 Dr. Ashok Chaudhary was also examined in aftercharge evidence.

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On conclusion of prosecution evidence, the case of the prosecution was put to the accused Dr. M.P. Kamboj and Dr. Renu Kamboj while they were examined under Section 313 Cr.P.C. They denied the prosecution allegations and pleaded innocence.

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In defence evidence, the accused examined DW-1 Dr. S.K. Menon, DW-2 Kanta, DW-3 Dr. Manju Khurana, DW-4 Dr. Raj Parashar, DW-5 Dr. D.D. Sharma, DW-6 Dr. Rajat Soni, DW-7 Suresh Kumar, DW-8 Vinod Kumar, DW-9 Shanti Devi, DW-10 Roshini, DW-11 Rajinder Kaur, DW-12 Neelam Kamra, DW-13 Santosh.

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CRR-1499-2008 (O & M)

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Based on the evidence led, the accused/petitioners came to be convicted and sentenced by the court of the Chief Judicial Magistrate, Hisar vide judgment of conviction and order of sentence dated 09/10.01.2008 as under:-

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Name of the accused	Offence under Section	Sentence RI	Fine	SI in default of payment of fine
Accused No.2 Dr. Mahender Kamboj being Director & Competent Person of accused No.1	In contravention of Section 4(3) read with Rule 9 punishable under Section 23 of PNDT Act	RI for 03 years	Rs.5,000/-	SI 02 months
	contravention of Section 5(1)(b) punishable under Section 23 of PNDT Act	RI for 02 years	Rs.5,000/-	SI 02 months
Accused No.3 Dr. Renu Kamboj being Director & Competent Person of accused No.1	In contravention of Section 4(3) read with Rule 9 punishable under Section 23 of PNDT Act	RI for 03 years	Rs.5,000/-	SI 02 months
	contravention of Section 5(1)(b) punishable under Section 23 of PNDT Act	RI for 02 years	Rs.5,000/-	SI 02 months

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All the sentences were ordered to run concurrently.

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The accused/petitioners preferred an appeal which came to be partly accepted by the Court of Sessions Judge, Hisar vide judgment dated 09.08.2008. Their sentence was modified/reduced under Section 4(3) read with Rule 9 punishable under Section 23 of the PNDT Act to 02 years rigorous imprisonment from that of 03 years. However, the fine was ordered to remain intact and the sentence qua violation of Section

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CRR-1499-2008 (O & M)

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5(1)(b) punishable under Section 23 of PNDT Act was upheld. All the sentences were ordered to run concurrently.

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The aforementioned judgments are under challenge in the present petition.

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During the pendency of the present revision petition, the sentences of the accused-petitioners were suspended by this Court vide order dated 13.08.2008.

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The learned counsel for the accused-petitioners submits that the complaint was not filed by a competent authority. The same could have only been filed by the District Appropriate Authority which was to be a three-member committee appointed by a Notification under Section 17 of the PC and PNDT Act. However, in the instant case, the complaint had been filed by the Civil Surgeon-Dr. S.K. Naval alone claiming himself to be the District Appropriate Authority. Therefore, the impugned judgments were liable to be set aside. Reliance is placed on ‘Help Welfare Group Society versus State of Haryana and others 2014(3) RCR(Criminal) 764’, Dr. Ritu Prabhakar and another versus State of Haryana and another (CRM-M-21764-2015 decided on 03.06.2016) and Dr. Anil Bansal versus The District Appropriate Authority, Gurugram (CRM-M-18417-2018 decided on 24.02.2020’ . He has also raised other arguments which need not be gone into in view of his primary argument.

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The learned counsel for the State has fairly admitted that the District Appropriate Authority which was authorized to file a complaint

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CRR-1499-2008 (O & M)

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could only be a three-member committee and the complaint filed at the instance of a Civil Surgeon alone claiming himself to be a District Appropriate Authority is not maintainable. He, however, contends that the complaint was filed in the year 2006, the summoning order was issued on 21.12.2006 and the petitioners came to be convicted on 09/10.01.2008. This Court had interpreted Section 17(3)(b) to the effect that the complaint could only be filed by the District Appropriate Authority which was to be a three-member Body only in the year 2014 and therefore, prosecutions initiated earlier could not be vitiated. Therefore, the present revision petition was liable to be dismissed.

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I have heard the learned counsel for the parties. 17. The first question which is required to be answered is as to what is the effect of a subsequent interpretation to a provision of law. The said question has been answered eloquently in the case of ‘ Lily Thomas versus Union of India 2000(3) RCR (Civil) 252’. Para 44 of the said judgment is reproduced hereinbelow:-

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44. We are not impressed by the arguments to accept the contention that the law declared in Sarla Mudgal's case cannot be applied to persons who have solemnised marriages in violation of the mandate of law prior to the date of judgment. This Court had not laid down any new law but only interpreted the existing law which was in force. It is settled principle that the interpretation of a provision of law relates back to the date of the law itself and cannot be prospective from the date of the judgment because concededly the Court does not legislate but only gives an interpretation to an existing law. We do not agree with the

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CRR-1499-2008 (O & M)

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argument that the second marriage by a convert male Muslim has been made an offence only by judicial pronouncement. The judgment has only interpreted the existing law after taking into consideration various aspects argued at length before the Bench which pronounced the judgment. The review petition alleging violation of Article 20(1) of the Constitution is without any substance and is liable to be dismissed on this ground alone.

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Similarly, in Sarwan Kumar and another versus Madal Lal Aggarwal, 2003(1) RCR(Rent) 347’, the Hon’ble Supreme Court held as

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under:-

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12. In Lily Thomas & Ors. case (supra) while rejecting the contention that the law declared in Sarla Mudgal's case (supra) could not be applied to persons who had solemnised marriages in violation of the mandate of law prior to the date of the judgment, this court held :

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"We are not impressed by the arguments to accept the contention that the law declared in Sarla Mudgal case cannot be applied to persons who have solemnised marriages in violation of the mandate of law prior to the date of judgment. This Court had not laid down any new law but only interpreted the existing law which was in force. It is a settled principle that the interpretation of a provision of law relates back to the date of the law itself and cannot be prospective from the date of the judgment because concededly the court does not legislate but only gives an interpretation to an existing law. We do not agree with the arguments that the second marriage by a convert male Muslim has been made an offence only by judicial pronouncement. The judgment has only interpreted the existing law after taking into consideration various aspects argued at length before the Bench which pronounced the judgment. The review petition alleging violation of Article 20(1) of the Constitution is without any substance and is liable to be dismissed on this ground alone."

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CRR-1499-2008 (O & M)

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XXXX XXXX XXXX

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19. In the present case because of the operation of Section 14 of the Act the only authority to pass a decree for ejectment of the tenanted premises is the Rent Controller appointed under the Act and Section 50 of the Act specifically bars the jurisdiction of the civil court to entertain any suit or proceeding in so far as it relates to the eviction of any tenant from the premises which were covered by the Dehi Rent Control Act. The civil court lacked the inherent jurisdiction to take cognizance of the cause and to pass a decree. Challenge to such a decree on the ground of nullity could be raised at any later stage including the execution proceedings. Tenancy of the building was governed by a special Act and therefore the decree passed by the civil court was a nullity and therefore inexecutable. Judgment-debtors had not filed their written statement in the civil court and no issue regarding the jurisdiction of the civil court to try the suit was framed. Tenant in the special leave petition in this Court raised the contention that the eviction decree passed by the civil court could not be executed against them. This Court refused to go into that question as it was not the subject matter of the order under appeal. It was left open to the judgment-debtors to raise this ground before the appropriate forum, if available to them under law. The only forum where the judgment-debtors could raise the objection regarding the executability of the decree was in the execution proceedings which they did. Since the jurisdiction of the civil court was barred, the decree passed by it was a nullity and the judgment-debtors could successfully raise objection regarding the executability of such a decree. The

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CRR-1499-2008 (O & M)

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executing court erred in holding that judgment-debtors could not raise the objection to the executability of the decree being nullity having been passed by a court lacking inherent jurisdiction to do so. This Court in Gian Devi Anand's case (supra) did not lay down any new law but only interpreted the existing law which was in force. As was observed by this Court in Lily Thomas's case (supra) the interpretation of a provision relates back to the date of the law itself and cannot be prospective of the judgment. When the court decides that the interpretation given to a particular provision earlier was not legal, it declares the law as it stood right from the beginning as per its decision. In Gian Devi Anand's case (supra) the interpretation given by the Delhi High Court that commercial tenancies were not heritable was overruled being erroneous. Interpretation given by the Delhi High Court was not legal. The interpretation given by this Court declaring that the commercial tenancies heritable would be the law as it stood from the beginning as per the interpretation put by this Court. This Court declared that the civil court had no jurisdiction to pass such a decree. It was not a question of taking away the jurisdiction it was the declaration of law by this Court to that effect. The civil court assumed the jurisdiction on the basis of the interpretation given by the High Court in Gian Devi Anand's case, which was set aside by this Court.

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Thus, it is apparent that the interpretation of a provision relates back to the date of the law itself and cannot be prospective of the judgment. When the Court decides that the interpretation given to a particular provisions earlier was not legal, it declares the law as it stood right from the beginning of its promulgation.

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CRR-1499-2008 (O & M)

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In the light of the aforementioned decisions of the Hon’ble Supreme Court, the arguments of the parties are required to be considered.

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Provisions of Section 17 of the Pre-Conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 reads as

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under:-

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17. Appropriate Authority and Advisory Committee.—

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(1) The Central Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for each of the Union territories for the purposes of this Act.

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(2)The State Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for the whole or part of the State for the purposes of this Act having regard to the intensity of the problem of pre-natal sex determination leading to female foeticide.

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(3)The officers appointed as Appropriate Authorities under sub- section (1) or sub-section (2) shall be,—

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[(a)when appointed for the whole of the State or the Union territory, consisting of the following three members:—

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(i) an officer of or above the rank of the Joint Director of Health and Family Welfare— Chairperson;

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(ii) an eminent woman representing women’s organisation; and

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(iii) an officer of Law Department of the State or the Union territory concerned:

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Provided that it shall be the duty of the State or the Union territory concerned to constitute multi-member State or Union territory level Appropriate Authority within three months of the coming into force of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002:

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CRR-1499-2008 (O & M)

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Provided further that any vacancy occurring therein shall be filled within three months of the occurrence;]

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(b) when appointed for any part of the State or the Union territory, of such other rank as the State Government or the Central Government, as the case may be, may deem fit.

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22. This Court in ‘Help Welfare Group Society versus State of

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Haryana and others 2014(3) RCR(Criminal) 764’ held as under:-

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5. The question which arises for consideration is whether even where the appointment is for a part of the State or the Union Territory, it should be multi-member three member body or only single member body consisting of officer of such rank as the State Government may deem fit.

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6. In our view, the purposive construction must be given to the said provisions and the intent to have a multi member body is not eschewed in Sub-section (b) when the appointment is for a part of the State or the Union Territory. We find it difficult to accept that if the appointment is for the whole of the State, it will be three member committee, while it is for part of State, it will be single member committee. The only change is that the Chairperson need not be of the rank of Joint Director of the Health and Family Welfare, but of such other rank as the State Government may deem fit. It will still continue to be a multi-member committee having an eminent woman representing women's organisation and officer of the Law department of the State as a member.

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XXXX XXXX XXXX

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8. We may examine the matter from another perspective i.e. the very objective for which these authorities are to be appointed under the said Act. In that context also when examined, such a multi-member body of three members

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CRR-1499-2008 (O & M)

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would far better serve the ends rather than the Civil Surgeon alone being the appropriate authority.

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This Court in ‘Dr. Ritu Prabhakar and another versus State

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of Haryana and another (CRM-M-21764-2015 decided on 03.06.2016)’,

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held as under:-

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31. Another important aspect of the matter is that the complaint filed against the petitioners has not been validly instituted. The paragraph 1 of the complaint gives the constitution of an appropriate authority for the district consisting of three officials i.e. Chairman and two other members; but a perusal of the complaint clearly reveals that the same has been signed only by the Chairperson and there is nothing on record to prove that rest of the two members of the appropriate authority have either signed or authorized the chairperson for filing the complaint against the petitioners. The provisions of Section 28 of the PC & PNDT Act contemplates that no Court shall take cognizance of an offence under this Act except on the complaint made by the appropriate authority concerned, or any Officer authorized in this behalf by the Central Government or State Government and the relevant part of Section 28 of the Act reads as under:-

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(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 authorized in this behalf by Central Government or State Government, as the case may be, or the Appropriate Authority; or

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(b) A person who has given notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the Court.”

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Admittedly in the present case, the State Government while issuing notification dated 7th November 2013,

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CRR-1499-2008 (O & M)

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Annexure P-15 has constituted the Appropriate Authority for the district consisting of the following officers namely:-

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“ i) Civil Surgeon Chairperson ii) District Programme Member Officer Women and Child Development Department. iii) District Attorney Member

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In the case in hand, the complaint was signed only by the Civil Surgeon claiming to be the chairperson of the Appropriate Authority and in this regard a Specific ground is taken under para 6(L) of the petition as well as during the course of arguments also a plea was raised on behalf of the petitioners before this Court to the effect that the complaint is not maintainable in view of the fact that the same is not validly instituted due to the lack of authorization and signatures by other two members of the Appropriate Authority.

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Even in the reply filed on behalf of the respondents also, the averment made in para 6(L) of the petition are not denied, rather the same are admitted in following terms:-

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“ In reply to part L of para 6 of the petition, it is further submitted that the civil surgeon is part and parcel of D.A.A. And has acted upon the opinion as advise of the DAA which makes him competent as well as authorized person to file the complaint and for proceedings thereof. ”

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Thus, neither in the complaint nor in the reply filed by the respondents or during the course of arguments it has been brought to the notice of this Court that there is any authorization to file the present complaint against the petitioners in consonance with the provisions of Section 28 of the PC & PNDT Act. Consequently, on the point whether the complaint against the petitioners is validly instituted or not, this Court comes to the firm conclusion that the complaint is signed and filed only by Dr. Inderjit Dhankar,

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CRR-1499-2008 (O & M)

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Chairperson claiming himself to be District Appropriate Authority (PNDT)-cum-Civil Surgeon, Panipat and other two members have not signed the same and thus the same is not validly instituted in consonance with the Section 28 of the PC & PNDT Act. As a result, it is held that the complaint is not instituted in the manner provided under Section 28 of the PC & PNDT Act and consequently the entire proceedings are vitiated being illegal in law. However, this issue has not been examined by both the learned Courts below in its true prospect and, as such the same has resulted into a grave miscarriage of justice.

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The Special Leave Petition to Appeal (Crl.)… CRLMP No(s).17069/2016 titled as ‘ State of Haryana and anr. versus Ritu Prabhakar and anr.’ filed against the above-said judgment was dismissed by the Hon’ble Supreme Court on 11.11.2016.

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This Court in ‘ Dr. Anil Bansal versus The District Appropriate Authority, Gurugram (CRM-M-18417-2018 decided on 24.02.2020’, held as under:-

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30. After hearing learned counsel for the parties, I find merit in the present petition, for the following reasons:

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(a) A perusal of letter dated 12.09.2016, constituting a PNDT Team by the Chairman, DAA-cum-Civil Surgeon, Jhajjar, clearly shows that it is signed by two members and not by the third member i.e. Member, DAA-cumDPO(WCD), Jhajjar, therefore, it is not signed by a validly constituted District Appropriate Authority as per Section 17 of the PC & PNDT Act.

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(b) Even a perusal of another order dated 12.09.2016, issued by Chairman, DAA-cum-Civil Surgeon, Gurugram, appointing a three member PNDT Team, shows that it was done under his sole signature and not by the other two members. This fact is not disputed in the reply/affidavit of the Deputy Civil Surgeon-cum-PNDT Nodal Officer,

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CRR-1499-2008 (O & M)

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Gurugram, therefore, in view of the judgment in Dr. Ritu Prabhakar's case (supra), the whole procedure stands vitiated as the lapse on the part of both the District Appropriate Authorities is incurable defect.

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(c) Further, as per procedure prescribed under Section 30 of the PC & PNDT Act read with Rule 12, it is mandatory to provide the copies of spot and seizure memos, if prepared at the spot, to a persons from whom the recovery is effected, however, a perusal of the impugned complaint as well as the reply filed in Court, nowhere shows that this procedure was followed and a copy of the list prepared by the team was ever supplied to petitioner, though in para 7 of the complaint, it is stated that spot and seizure memos were prepared at the spot but a copy thereof was never supplied to the petitioner. This also vitiates the procedure adopted by the complainant.

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(d) As per provisions, the complaint is to be filed by the District Appropriate Authority, which consists of three members, whereas the impugned complaint has been filed by the District Nodal Officer. It is also held by the Court in Ishwar Singh Yadav's case (supra) that the District Appropriate Authority cannot delegate its powers, therefore, the procedure adopted by the District Appropriate Authority, Gurugram is totally illegal, which cannot be termed as an curable irregularity.

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(e) Therefore, in view of the well settled principles of law, when chances of conviction of petitioner are bleak, no purpose will be served to allow continuation of his prosecution.

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A perusal of the aforementioned judgments would show that under Section 17(3)(b), the District Level Appropriate Authority is also to be a three-members body. Therefore, this interpretation of the law would deem to exist from 20^th September, 1994 itself i.e. the date of promulgation of the Act.

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In the instant case, the complaint was filed by Dr. S.K. Naval alone and it ought to have been filed by a three-member Committee, appointed by a Notification under Section 17 of the PC and PNDT Act. The same not having been done, the very complaint itself is not

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CRR-1499-2008 (O & M)

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maintainable and therefore, the subsequent proceedings and conviction stands vitiated.

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In view of the aforementioned discussion, I find considerable merit in the present petition and therefore, the judgments of the Trial Court as well as of the lower Appellate Court are hereby set aside. The petitioners are acquitted of the charges framed against them. 28. The present revision petition stands disposed of in the above terms alongwith the pending applications, if any.

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(JASJIT SINGH BEDI) JUDGE

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May 15, 2025 sukhpreet Whether speaking/reasoned:- Yes/No Whether reportable:Yes/No

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M/S Kamboj Ultrasound and Diagnostic and Ors. v. State of Haryana

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M/S Kamboj Ultrasound and Diagnostic and Ors. v. State of Haryana

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