Allowed

Sri.Kathi.Kanakal Reddy v. High Court for the State of Telangana

Telangana HC15 Apr 2025CRLP/15820/2024

Case brief

AI extract

What is this about?

Hospital staff sought quashing of proceedings for alleged illegal sex-selection activities. The Court found no direct allegation of sex determination, no cheating or miscarriage without good faith, and no complaint by the Appropriate Authority under Section 28 PCPNDT Act, and quashed C.C.No.643 of 2023.

What did the court decide?

Proceedings against petitioners in C.C.No.643 of 2023 before the Judicial Magistrate of First Class, Nalgonda quashed; miscellaneous applications closed.

Sri.Kathi.Kanakal Reddy Vs High Court for… — Child Sexual Offences (POCSO) | Telangana HC (2025)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY HE FIFTEENTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SMT JUSTICE K. SUJANA

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CRIMINAL PETITION NO: 1 5820 0F2024

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Between:

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1 Sri Kathr.Kanakal Reddy, Son of Saidi Reddy Aged 58 years, Occupation. I.|Y,P,.B19,^{Vijayendhar reddy Hospitat, D V K-road,trtatgonaa-sbeOO.t.'}

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2 Sri.Kathi-Vijayendher Reddy, Son of Kanakal Reddy Aged 34 years, Occup.ation Managing Director of Vijayendher reddy mulii speciality Holpital, !/o lijayendhar^{reddyHospitat, D V K road,Natsonda-50800i.} Sri.. Bollepally _Hanumanthu, Son of Lingaiah Aged 12 years, Occupation. working 9.. P 8.9 in Vijayendher reddy-mutti s[eciatity ttospitat, R/b.Near Prera na schoor' Su rya va m s h i cor oa nv.: 8.y,T, BftElsln^g8 ffi^gf $b, .",

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AND

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HIGH COURT FOR THE STATE OF TELANGANA, State of Tetangana Rep by Public Prosafutor. High court buildings Hyderabad

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2 Station House Officer, Nalgonda I Town, Nalgonda ,,.,r'.1....*=TTONDENTS

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Petition under section 528 of BNSS 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 Petitioners, Vide Crime no..l03 of 2O23 daled 1O +.ZOZI is without sa nction/authority of law, consequenfly euash the C,C. N0.643 OF 2023 pending adjudication on the file of the Honble Judicial First class Magistrate .AT.Nalagonda. Nalagonda District

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l.A. NO: 1OF 2024

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Petition under Section 528 of BNSS 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.N0.643 OF 2023 pending adjudication on the file of the Judicial First class Magistrate .AT.Nalagonda. Nalagonda 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 PoDlcHETl ,Advocate for the Petitioners and the Assistant public prosecutor on behalf of the Respondeni No. 1 & 2.

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The Court made the following: ORDER

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/ ki

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THE; H')NOURABLE^{SMT. JUSTICE K. SUJANA}

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CE'.IMINAL PETITION No.1582O^{of 2024}

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ORDER:

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Thrs I--riminal Petition is^{fi1ed seeking the Cortrt to} quash the p-o:eedings against^{the petitioners in C C Nc 643} of 2023^{,rr th} t^{llle of the learned JudicialMagistrare ol First} Class, Nzrlpyr-r^J a. registered^{for the offences punisha blt' -rnder} Sections 1 2Crlr 312 and^{42O of the Indian Penal Crrclt:, 1860} (for shor-. 'rl)rl'' and Section 23 of^{the Pre-Conceptioran I Pre-} Natal Diag'rr;stic Techniques^{Act, 1994 (for short 'the Act} ).

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The brir: facts of the case are^{that on April l0' 2023, at} 6:00 PM tl-rt^a dministrator^{of Manda Sakhi Center n N elgali,} lodged a crn'r:laint at Nalgonda^{I Town Police Stationstating} that Kati^{',/i;z','endar} Reddy^{Hospital in Sriramrlag.:r Cllony,} Nalgoncla, rvrs involved in^{illegal sex selectionaclivitiesfor} over a '(rar r,lrarging exorbitant fees.^{The hospital repc'rtedly} referred^pr i'[]r1lnt women to other^{locationsfor sex selt ction.} Given lrtrzrlqcrrda's skewed sex^{ratio since 201Othe} complairra^{n 1-} requested the^{Policeto take action ailainst the} hospital.

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sKs,J Crl.P.l,[o.15a2() of 2024

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Heard Sri Srinivas Podicheti, learned counsel appearing on behalf of the petitioners as well as learned Assistant public Prosecutor appearing on behalf of the respondents.

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Learned counsel for the petitioners sr,rbmitted that the petitioners have been falsely implicated in a case registered under Sections 372,42O, 12O(B) of the IpC and Section 23 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. He contended that the Police lack the authorit5z to register the crime and investigate the aileged offences under the Act, as only the ',Appropriate Authority" or authorized oflicers can file complaints under the Act.^{.Furthermore,} it is argued that Section 42O of the IpC is not applicable, as there is no allegation of cheating or rnducement, and the foundational facts for the offence are absent. He relies on precedent judgments oI this Court and the High Court of Rajasthan, which have quashed similar cases on the grounds that the complaints were not filed by the appropriate authority and were not in accordance with the law. Therefore, it is prayed that this Court to quash the proceedings against the petitioners by allowing this criminal petition.

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SKS,J crl.P.No.1582o cf2024

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On t-re :ther^{hand, learned AssistantPublic Frostcutor} opposed t[-'e stLbmissions^{made by the learned crltrn:lelflrr the} petitione :s s t^a ting that the^{allegationsleveleci againsrt the} petitione :s^,t :: serious^{innature,which' requrres trial'} Further, at t tis^{stage, quashing of proceedingsa5iair-r';t the} petitioners^,1ce s not arise.^{Therefore, he prayecl tht Court to} dismiss^'h ' t riminal Petition.

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In liglh - of the submissions^{made byboth[e arned} counsel arrrl^{rtpon perusal of the material available'tn r':cord,} the allegatiorls^{leveledagainst the petitionet's z reunder} Sections^{1 2Cr1r3 12 and 42Oof IPC and Section i]3oJ the Act'}

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At tlrrs; stage, it is significant^{to note Sections27 tnd 28} of the POPNI)I' Act,^{whichreadas follows:}

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!17. Offence to be cognizable,^{non-bailableand} rrorr compoundable.-Every offence^{under thrs A( t} r.l:.J be cognizable, non-bailable^andnor r c,n r ru ndable.

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il8, lognizance of offences

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t. No court shalt take cognizance^{of an offence} rrn,l rr this Act excePt on a comPlaint^madeby- lal lre^{Appropriate Authority concerned,orary} oliic:- authorized in this behalf^{by the Centrirl} (i,),1) nment or State Government, as the case maJ' lx ,^(,r the Appropriate Authority; or

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SRS,J Crl.P.No.15a2O of 2024

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(b) a person who has given notice of not less than fifteen days in the manner prescribed, to

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the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court.

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Explanation.-For t}re 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 hrst class shall try any offence punishable under this Act.

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

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Karnataka and anotherl, wherein in paragraph Nos. 10 to 16, it is held as follows:

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'1O. ln these cases the complaints are frled 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 notification mentioned therein and orders of Planning Dfector of Health and Social Famiiy Welfare and the Deputy Director of PC&PNDT etc., The notihcation, orders or authorization are not produced along with the complaints.

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I C/W.W.P.No.200186 OF 2018

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SI(S,J Crl.P.No. tti820^{r,f 2024}

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Il Respondent No.2 in^{the complaintsdoes} n(,t r ren state that^{he wasauthorized by} ',{u:ro,rriate Authority'^{to hle aforesaid complaints} Lo l)r( secute the^{petitioners.Having regardto that,} 11 e.', \'i1s no compliance^{ofSection28(1)(tt)o1} P(ll)[ T Act, 1994.^{There is forcein the coritention} tLat. n the absence^{ofproduction ofsuch} n,)1ill,)rltion, the complaints^{are incompetent.}

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l:.. The complaints were filed through^private arlre,c:te without any authorization^{of appropriate} arL'l-Lt ritl'representing the complaint^{or Government} A r horization. Since, the^{representationolthr} corrplirint before the Court^{at inception was nol} ur,1e^' authorization of^{Appropriate Authorit.vor} Coi-'' nent, even that^{objectionsof thepetitioners} .r^'r r r ltainable.

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1 : . tn the similar matter before^{the Higl} Co rr of Judicature at Bombay^Benclla Au:.rr rgabad in Dr.Sai w/o Santhosh^Shiradktrrvs T 1 ti.ate of Maharashtra and^{anotherin Crimina} $'rrr I'etitron No.1381 of 2015,^{similar actior. wa:i} c r r I : rged on the^{groundof violation of principleso'} na ri iLl^justice. It was contended that^{beforeltlinl;} o- r r plaint, the Appropriate Authority^{should hav{} g\er opportunity to the alleged defaulters^anci tirL:t:r L their explanation, sought the^compliance.

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In that case court held that^{havingregarrl} t,) sc.reme of the Act, Sections^{17 (a), (a), 28 and2(t} lr I Rule 9, whenever any omissions^o crrrLrrissions in compliance of Act ald Rules^ar,' frlrn,l the appropriate authority has to seelr explenation of the defaulters to hnd out, whethe: tr1/)r'€ is any criminal intention in such violation. It

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SKS,J Crl,P.I{o.1582O of 2024

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was further held that, if there is scope for correction, no criminal intention is found, compliance can be permitted. Over all it is stated that an opportunity shall be gi.7.r, 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 relerred to supra, was conhrmed by the Hon'ble Supreme Court in Special Leave to Appeat (Crl) Crl.M.P.No.5636 12017 on 17.O4.2O17. He produces the copy of thi said order.

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For the reasons stated supra the trial Court has committed error in taking cognizance of the matter thereby 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 Others2, wherein in pa.ragraph Nos.45, 50, 70 and 71, it is held as under:

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"45. Therefore, where a person is alleged to have commitied 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 prosec-ution under IPC could not be disallowed on

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SXS,J Crl.P.No.1582O tf²⁰²⁴

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tlre 3^()un(l the CA^{Actwas a special statutevis-a vii} rlLr IPC What had been^{prohibited was that c[} ta kr n r cognizance^except on^{a complaintbut irL cas'-'} a r ollr:ncc tlnder the^tPC is^{made out the taking cf} c,)!ruz1l1ce rs not^prohibited.

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i,(. In the circumstances, it may^{be n,rtice(l} tluit ,r1 lact the taking of^{cognizanceof the olfencr} unrlcr tlre Act can^be said to^{be barredexcept onr} c)rrfllint made by the Appropriate^Authorit" . )n,r(rlled, or arty ofltcer authorized in^{this behalfb"} llr( C(ntral Government or^{StateGovernment,as th:} c1.je nav be or the Appropriate^{Authority;orr} pr-scrr rvho has given not less than ltfteen^davrr' ro.ic: in the manner^{prescribed,to theAppropriate} A u trh r ritv, ol the alleged^{offenceand of his intentio1} r,r r'.] r <e a complaint to the Court^{as providedfor i'l} t,,rn; of Section 28 of the^{Act.Howevel-,the} olf.:n::s under the Act being cognizable,^{ronb€Lilable} ar.rl r on-compoundable in terms^{of Section27, the} ir l es tigation of the same by the^{Policewould not pt'r} se lrr :tarred.

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''1) The said observations would apply^{to the} cai,'ri Lrnder the Act in respect^{of doctorsas wellrvho} ai., ;rrir1 to have been negligent and^commirteda cc!^.r , al)le offence under the^Act.

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'7 t, In the circumstances, the questions^ale f ,rnrlated in the reference are answered^inthe f rllor u ll-rg manner, that:

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FI R for the offence committed under the Act can be registered on the complaint oI the Appropriate Authority and can l)e investigated by the Police; however,

SKS,J Crl.P.No.15820 of 2024

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cotnizance 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 aulhority can be filed in the Court. However, cognizance would be taken only the complaint that has been hled in accordance with Section 28 of the Act.

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FIR can be lodged and offences can be investigated by the Police but cognizance only of the complaint is to be taken by the Court.'

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In those cases, complaints were Iiled by the District Health Officer. It was stated that the Vigilance Squad conducted a raid based on authorization from the Appropriate Authority under a government notiflcation. However, no such notification or authorization was produced along with the complaints. District Health Oflicer did not state that he was authorized by the Appropriate Authority to fiie the compiaints and prosecute the petitioners. Therefore, there was no compliance with Section 28(1)(a) of the Act. In the absence of such authorization, the complaints wele incompetent. The complaints were hied through a private advocate without proper autho rizattolf by the Appropriate Authority or the

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sKs,J Crl.P.No.1582O of 2024

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Governmetrr . Flence,^{the representationbefore the (lorlr I u'as} unauthori::e rl^{:u-rd the obiections of the petitionersrvere} "alid'

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In a si:rr:lar matter,^{the High Courtof Bombaf in ttr. Sai} w/ o Salt^{:r i; s} i r Shiradkar vs.^{State ofMaharashtl-aand} Another^(Olitrinal Writ^{Petition No.1381 of 2015) obs,etwed} that belor e iling a complaint, the^{AppropriateArrt hority} should gir,,: a'r opportunity^{to the alleged defaulters to pr-ovide} an explan,r,ic tr and seek compliance.^{The Court hel(l that} under S,:clir:t Lr; 17(4)(a), 28,^and 29^{artd Rule 9 of tht, \ct, if} any violat io r s are noticed, the Authority^{shouldser :k an} explanation to determine whether the^{violatitlnswere} intentiorLa, If not, and if compliance can^{be er-rr';ured,} prosecution sfrould not be pursued. An opportrrnit'/^mrlstbe given befcr,' i'ritiating prosecution. For the^{reascn-s stated} above, the tri rl court erred in taking^{cognizance of t.1e nlatter,} causing^qravc injustice. Therefore,^{the petitionsrvereallcwed.}

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ln t^-r l)rcsent case, the complaint indic:ate:,^th rt^the hospital t ele rred pregnant women to another^{Cent,)r for} scanning, z: llr:,1edly for sex determination.^{Hotvsvgl', tl ere is} no direc I rr]1e ration of sex determination itself.^Als l, tl'.ere is

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sxs,J Crl.P.No.l5E2O of 2O2+

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no specific aliegation attracting Sections 42O or 312 of ttre

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IPC

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At this stage, it is pertinent to note Section 312 of IpC, which reads as under:

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"Causing mis6arriage:-Whoever voluntarily causes a woman with child to miscarr5r, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three yeaJs, or w.ith fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

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Explanation--A woman who causes herself to miscarqr, is within the meaning of this section."

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The charge sheet reveals that L.W. 1, who already had a female child, conceived again and sought treatment at Leelavathi Hospital, Nalgonda. Due to unavailability of doctors, she was advised by L.W.3 to go to Sri Vijayender Reddy Hospitai. There, accused No.3 took her to accused No.2, who referred her for scanning at Ashish Scanning Center. The report was shared via WhatsApp, and accused No.2 allegedly told her the fetus was female and unhealthy,

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1_L

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SKS,J Crl.P.No. 15a2,) of 2024

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and advisec termination,^{demanding Rs.70,000 /- lcrthe} procedltrc.

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S ul>sc,1ur:ntlv, based on directions^{fromacc lsec Nos'1} and 2, rtc:,rst d No.3^{contacted L.W.3 to bring the patierrt back} to the hr,spi tal. Believing the^{accused, the patie 1t a nd her} family <:o-rser ted to [he termination.^{However, Section312 of} IPC appl €..;^()nly when miscarriage^{is caused wit-houtgood} faith to save the mother's life. In^{this case, thLe charg':sheet} states thr: l'-r --ts \,as unhealthy, indicating^{medtcalrelrs.onsfor} the terrn in:: t i,tn.

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1.6. NIor,:r rer, documents submitted^{by the petitionel s show} that accuse([ No.2 is the director^{of a licensed multisJ,eciality} hospital s,tt {fed by qualihed doctors. Thus,^t'rere is^no substantra,l :asis for the^{prosecution's claim that the zrccused} were ulcl alit-red.

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17 . T'h^jr'eli,re, continuation of proceedings^{b:rs,ed on} unsubs;trir ,ia ted and improperly filed complain:s, '.vithout complirlrct r,'ith Sections 27 and 28 of the Act, lmounts^to abuse ol p,r c cess of 1aw. Further, as obsen,ed n^Hardeep Singh (s;rr;r^- r) ,. although the police may file an F [R and investigatt'. the Court may only take cognizance basr d on a

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sKs,J Crl.P.IIo.15820 of2O24

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complaint filed in accordance with Section 28 of the Act. In this case, since the complaint was not properly hled by the Appropriate Authority, the legal proceedings are not sustainable.

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In view of the above, this Court is of the considered opinion that the continuation of proceedings against the petitioners is not in accordance with law and amounts to an abuse of process. Therefore, the proceedings against the petitioners are liable to be quashed.

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Accordingly, this Criminal Petition is allowed and the proceedings against the petitioners in C.C.No.643 of 2023 on the hle of the learned Judicial Magistrate of First Class, Nalgonda, 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. ISMAIL EPUTY REGISTRAR

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//TRUE COPY//

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SECTION OFFICER

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To,