Quashed

Dr. Katta Nanda Kishore v. State of Telangana

Telangana HC21 Sept 2024CRLP/8080/2024

Case brief

AI extract

What is this about?

The High Court of Telangana quashed criminal proceedings against a doctor under the PCPNDT Act and IPC. The court held that the proceedings constituted an abuse of process of law because the complaint was not filed by an appropriate authority as mandated by Section 28 of the Act.

What did the court decide?

Criminal proceedings (C.C.No.634 of 2019) against the petitioner in Crl.P. No. 8080 of 2024 were quashed.

Dr. Katta Nanda Kishore Vs State of… — Constitutional and Fundamental Rights | Telangana HC (2024)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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SATURDAY ,THE TWENTY FIRST DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SMT. JUSTICE K. SUJANA

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CRIMINAL PETITION NO: 8080 OF 2024

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Between:

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Dr. Katta Nanda Kishore, Son of Late K. Prakash rao, aged.63 years, Occupation. Doctor Rl/o.H.no.4-3, Jayasurya nagar colony, Munaganur Hayathnagar, Ranga Reddy District.

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...Petitioner/Accused No.1

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AND

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1 State of Telangana, Rep by Public Prosecutor. High Court Building, Hyderabad.

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2 Station House Officer, lbrahimpatnam Police station, Rachakonda Police Commisionerate, Ranga reddy District.

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...Respondent

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Petition under Section of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to Declare the action of the Respondent no.2 in launching criminal prosecution against the Petitioner, Vide Crime no.41 of 2019 dated 8.2.2019 is without sanction/authority of law, consequently Quash the C.C.No.634 o'( 2019 pending adiudication on the file of the XV Judicial [/agistrate of First Class (formerly called as XXV Metropolitan Magistate Court) at lbrahimpatnam, Ranga Reddy District.

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l.A. NO: 1 OF 2024

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Petition under Section 482 oI Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to stay all further proceedings in C.C.N0.634 OF 2019 on the file of the XV Judicial lt/lagistrate of First Class (formerly called as XXV l\rletropolitan l\4agistate Court) at lbrahimpatnam, Ranga Reddy District.

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This Petition coming on for hearing, upon perusing the lvlemorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri Srinivas Podicheti, Advocate for the Petitioner and Sri D. Arun Kumar, Additional Public Prosecutor on behalf of the Respondents.

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The Court made the following: ORDER^1'

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THE HONOURABLE^{SMT. WSTICE K. SUJAT{A}

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CRIMINAL PETITION^{No.8O8Oof 2o24}

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ORDER:

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This Criminal^{Petition is irled under Section 482 of} Code of Criminal^{Procedure,1973} lfor^{short'Cr'P'C' )to} quash the proceedings^{againstthe petitioner/accusedNo'1} in C.C.No.634 of 2Ol9^{on the hle of the learned XV Judicial} Magistratc o1' First^{Class,Ibrahimpatnam, Ranga Reddy} District, registered for^{the offences punishable under} Sections 406 and^{42O of the Indian Penal Code, 1860 (for} short 'l.P.C.') and Section^{23 of the Pre-Conception& Pre-} Natal Diagnostic Techniques^{Act, 1994 (for shortthe Act')'}

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The brief facts of the case^{are that respondentNo'2} Police on receipt^{of credible information that a prenatalsex} determine test was conducting^{illegally on pregnant ladies at} Prathyrrsha Scanning^{Center,by violating the Government} rules and reguiations, he^{along with his staff conducted} Decoy operation by sending^{one woman constable into the} scanning center. The^{petitioner conducted prenatal sex} determine test to the said^{woman constable and issued} report to her by disclosing the^{gender of the baby. Later,the}

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said woman constable came outside and informed the same to the superior ofhcers. On receipt of the said information, the superiors rushed to the spot and found the petitioner conducting sex determination test to pregnant ladies without registered medical practice certihcate. On enquiry, the petitioner revealed that since three years he was conducting sex determination test to pregnant ladies. Thereafter, respondent No.2 registered a case in Crime No.41 of 2Ol9 for the offences punishable under Sections 4O6 and 42O of IPC and Section 23 of the Act and after completion of investigation, filed charge sheet, uide C.C.No.634 of 2019, before the learned XV Judiciai Magistrate of First Class, Ibrahimpatnam.

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Heard Sri Srinivas Podicheti, learned counsel appearing on behalf of the petitioner as well as Sri D. Arun Kumar, Iearned Additional. Public Prosecutor appearing on behalf of the respondents.

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lrarned counsel for the petitioner submitted that the petitioner was falsely implicated in the case as he was no way concerned with the offences as alleged by respondent No.2. He further submitted th4t respondent No.2 is not

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empo^Iered under the lau, to register a crime against the petitioner under the provisions of the Act. Learned counsel further submitted that section 28 of the Act prohibits a Court from laking cognizance of any offence except on a complaint made by an appropriate authority or an authorized ofhcer. He further submitted that a person other than appropriate authority or authorized officer cannot hle a complaint directly to the Court in this behalf or he/she has to give 15 derys' notice. Therefore, the allegations against the petitioner do not constitute the offence, as such, prayed the Court to quash the proceedings against the petitioner.

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5- In support of his submissions, learned counsel for the petitioner relied on the judgment of this Court in Sai Kiran Hospital and Another vs. State of Telangana and Anotherl, wherein in paragraph No.S,.it is held as follows:

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"6. In the instant case also, it is nowhere stated in the private complaint that the 2"d respondent is an appropriate authority and that he uas authorized by the appropriate authority' to file the said complaint and to prosecute the petitioners. Keeping in mind the ambit and scope of Section 28 of the P.N.D.T. Act and following the principles of law taid down in Dr. Mallannagouda

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v. the State of Karnataka (supra), this Court is of the considered view that further proceedings against the petitioners in both the criminal petitions would amount to an abuse of process of law."

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On the other hand, learned Additional Public Prosecutor submitted that after issuance of FIR, the Poiice informed to the authorized officer. According to Section 28 of the Act, the complaint has to be hled by the authorized officer in the Court and further, Section 2d of Cr.P.C defines the complaint and which has to be filed in the Court only. He further submitted that there are serious allegations against the petitioner and the case is of the year 2O19 and the charge sheet is also hled. He further submitted that the objections raised by the learned counsel for the petitioner can be decided in the trial, as such, prayed the Court to dismiss the petition.

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7 . In the light of the submissions made by both the learned counsel and a perusal of the material available on record, the allegations leveled against the petitioner are under Sections 4O6 and 42O of IPC and Section 23 of the Act-

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At this stage, it is significant^{to note Sections27 and} 28 of the Act,^{which readunder:}

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Offetce to be cognizable,^{non-bailableand} non-compoundable.-Every^{offence underthisAct} shall be cognizable, non-bailable^andnon compoundable.

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c,o9E.iza,[.ce of offences

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No court shall take cognizauce^{ofan olfeace} under this Act excePt on^{a complaintmade} by-(a) the Appropriate Authority^concerned,or any ofhcer authorized in this^behalfbythe 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} hfteen days in the manner^{prescribed, to}

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the Appropriate Authority, of the^{allegedoffence} and of his intention to make a complaint^{to the} court.

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Explanation. For the purpose of^{this clause,} 'person' includes a social organization.

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No court other than that of a^Metropolitan Magistrate or a Judicial Magistrate^{of the flrst} ctass shall try any offence^{punishableunder this} Act.

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where a complaint has been made^under clause (b) of subsection (1), the court^{may, on} demand by such person, direct the Appropriate

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Authority to make available copies of the relevant records in its possession to such person."

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At this stage, it is pertinent to note the judgment of the Karnataka High Court in Dr. Mallanagouda vs. The State of Karnataka and another2, wherein in paragraph Nos. 10 to 16, it is held as foliows:

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"10. In these cases the complaints are filed by the District Health Ofhcer i.e., respondent No.2. In the complaints it is stated that the Vigilance Squad, raided on authorization of Appropriate Authority under Government notihcation mentioned therein and orders of Planning Director of Health and Social Family Welfare and the Deputy Director of PC&PNDT etc., The notification, orders or authorization are not produced along with the complaints.

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1 1- Respondent No,2 in the complaints does not even state that he was authorized by Appropriate Authority' to file aforesaid complaints to prosecute the petitioners. Having regard to that, there was no compliance of Section 28(Il(a) of PCPNDT Act, 1994. There is force in the contention that in the absence of production of such notihcation, the complaints are incompetent.

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The complaints were filed through private advocate without any authorization of appropriate authority representing the complaint

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'?^{C/W.w.P.No.2OO186 OF2018}

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or^(iovernment Authorizatron.^{Since, the} representation of the complaint^{beforethe Court} at inception was not under^{authorizationof} Appropriate Authority or Government,^eventhat objections of the petitioners are^sustainable.

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1:j. tn the similar matter before the^High Court of Judicature at Bombay^Benchat Aurangabad in Dr.Sai u'/6 Santhosh^Shiradkar vs. The State of Maharashtra and another in Criminal Writ Petition No. 1381 of^{2015, similar} action was challenged on the^{ground of violation} of pnnciples of natural^justice- It^{was contended} that before fiting of complaint, the^Appropriate Authority should have given opportunity^{to the} alleged defaulters and taken their explanation, sought the compliance.

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In that case court held that^having regard to scheme of the Act, Sections 17^{(a), (a),} 28 at,d 29 and Rule^- 9. whenever any^omissions or commissions in compliance of Act arld^Rules are found, the appropriate authority has to^seek explanation of the defaulters to frnd out, whether there is any criminal intention in such^violation. It was further held that, if there is scope^for correction, no criminal intention is^found, compliance can be permitted.^{Over atl it is stated} that an opportunity shall be^given to^defaulters, before taking recourse to^prosecution of^the defaulters.

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The learned counsel for the petitioners submits that judgment in Dr.Sai's case referred to supra, was confirmed by the Hon'ble Supreme

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Court in Special Leave to Appeal (Crl) Crl.M.P.No.5636/2O17 on 17.O4.2017. He produces the copy of the said order.

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16For the reasons stated supra the trial Court has committed error in taking cognizance of the matter rhereby causing gross injustice to the petitioners. Therefore, petitions are allowed. "

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Further, the Judgment of the High Court of Punjab and Haryana at Chandigarh in Hardeep Singh v. State of Haryana and Others3, wherein in paragraph Nos.45, 50, 70 ar,d 71 , it is held as under:

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"45. Therefore, where a person is alleged to have committed offences under Sections 24, 24-A and 26 of the CA Act as also under the IPC but in the absence of complaint under Section 28 of the CA Act before the Magistrate's Court, no cognizance of offences punishable under the CA Act could be taken but nevertheless prosecution under IPC could still be commenced against the accused. The prosecution under IPC could not be disallowed on the ground the CA Act was a special statute vis-a-vis the IPC. What had been prohibited was that of taking cognizance except on a complaint but in case an offence under the IPC is made out the taking of cognzance is not prohibited.

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[n the circumstances, it may be noticed that in fact the taking of cognizance of the offence

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unde: the Act can be said to be barred except on a complaint made by the Appropriate Authority concerned, or any ofhcer authorized in this behatf by the Central Government or State Government, as the case may be or the Appropriate Authority; or a person who has given not less than fifteen days' notice in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the Court as provided for in terms of Section 28 of the ActHowever, the ollences under the Act being cognT.able, nonbailable and non-compoundable in terms of Section 27, the investigation o[ the same by the Police would not per se be barred.

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The said observations would appty to the cases under the Act in respect of doctors as nell who are said to have been negligent and committed a cognizable offence under the Act.

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ln the circumstances, the questions are formulated in the reference are answered in the following manner, that:

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FIR for the offence committed under the Act can be registered on the complaint of the Appropriate Authority and can be investigated by the Police; however, cognizance of the same can be taken by the Court on the basis of a complaint made by one of the persons mentioned in Section 28 of the Act.

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A report under Section 173 CrPC along with the complaint of an appropriate authority can be filed in the Court.

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However, cognizance^{would be taken} only the comptaint that^{hasbeenhled in} accordance with^{Section 28 of the Act.}

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FIR can be^{lodgedand offencescanbe} investigated bY^{the Policebut} cognizance only^of the complaint^{is to be} taken by the Court."

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Reverting to^{the facts of the case on hand.anda bare} perusal of the above sections^{would go to showthat no} Court shall take^{cognizanceof an offenceunder this Act} except on the^{complaintmade by the appropriateauthority} or any authorized^{officer in this behalf or he/she has to give} 15 days'notice.^{In additionto that, Rule 18(3)(iv) of the Pre-} Conception and^{Pre-Natal Diagnostic Techniques} (Prohibition of Sex^{Selection)Rules, 1996 explicitly} stipulates that the^{involvementof police for investigating} cases under the Act^{shall be minimum'The Act and its} regulations discourage^{participation of Police in the hrst} place. Therefore, it is^{impossiblefor the Police to registera} complaint, conduct an^{investigation, or make an arrest'} Further, the complaint^{was fiied by the authorizedofficer} after issuance of FIR.^{Therefore,it is to be noted that as per} Sections^{27 and. 28 of the Act, informingthe authorized} ofhcer after^{issuanceof FIR, is not in accordance with law'}

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Hence, the allegation against^{the petitioner for the offt:nce} punishable under Section^{23 of the Act does not attract'}

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Subsequently, the^{petitioner was also aliegedfor the} oflences punishable under^{Sections 406 and 42O of IPC: A} cursory reading of the entire^{complaint revolves around} determination of sex by^{taking some amount as fee. There} is not even a whisper about cheating.^{Furthermore,the} petitioner and the other co-accused^{have consentedto} ascertain the sex of the^{fetus duringthe decoyoperation. As} there is no cheating, the^{offenses underSections406 and} 42O do not attract to the facts of^{this case.}

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In vieu' of the above discussion^{and the legal} guidetines established by the Karnataka^{High Court in Dr.} Mallanagouda (above), it is clear^{that respondentNo.2 is not} an appropriate authority and that^{the"appropriate} authority" did not^give him^{permission to file the comptaint} in order to prosecute the^petitioner.

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Furthermore, as observed by^{the High Court of Punjab} and Haryana at Chandigarh in Hardeep^{Singh (supra)that} when it comes to Iiling of First Information^{Reporl. for}

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offences under the Act a report under Section 173 CrpC along with the complaint of an appropriate authorit5z can be filed in the Court. However, cognizance would be taken only the complaint that has been filed in accordance with Section 28 of the Act.

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In the said circumstances, the complaint was not filed by the appropriate authorit5r and the same is not in accordance with law. Therefore, this Court is of the considered opinion that continuation of legai proceedings against the petitioner is nothing but abuse of process of law.

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Accordingly, the criminal petition is allowed and the proceedings against the petitioner in C.C.No.634 of 2O19 on the file of the learned XV Judicial Magistrate of First Class, Ibrahimpatnam, Ranga Reddy District, are hereby quashed.

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Miscellaneous applications, if any pending, shall also

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stand closed.

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Sd, MOHD.ISM R ASSISTA^{NT REGIST}

//TRUE^COPY//

SECTION^OFFICER

ANA

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To,

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The XV Judicial Magistrate of First Class formerly calted as XXV -^{Metropolitan[Vlagistrate Courtat lbrahimpatnam.} 2. The Station House Officer, lbrahumpatnim police Station, Rachakonda. 3, ll LRCopies

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