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2006 DIGILAW 3274 (PNJ)

Ramesh Lal Goyal v. State of Punjab

2006-08-10

T.P.S.MANN

body2006
JUDGMENT T.P.S. MANN, J. 1. The present petition has been filed by the petitioner seeking quashing of criminal complaint dated 11.3.2003 (Annexure P.l) and order dated 17.5.2003 (Annexure P.7) passed by Additional Sessions Judge, Moga, whereby the order of discharge passed by Judicial Magistrate 1st Class, Moga dated 9.7.2003 was set aside. 2. It is submitted that the petitioner is MD, MBBS and runing hospital at Moga under the name and style of Goel Hospital and Scan Centre. For that place, he got himself registered under Pre-Natal Diagnostic Techniques Act (hereinafter referred to as ‘PNDT Act’) by depositing a sum of . Rs.30,000/- and then installed an ultra sound machine and other equipments. In June 2002, petitioner took on rent one shop at’ Baghapurana to carry on part time medical practice there as well. However, he did not get sufficient business at Baghapurana and finally closed that shop in November 2002 by locking the same. In his absence, it is claimed that Dr.R.P. Mittal, the then Acting Civil Surgeon, Moga conducted a raid on 22.2.2003 on the aforesaid clinic of the petitioner at Baghapurana. On finding the said clinic/shop to be locked, he sealed the same. Later on, Dr. R.P. Mittal, while in the presence of the petitioner and others opened the shop and found, one display board, where on it was mentioned “Pre Natal sex determination tests are not done here”, lying there. However, no ultra sound machine or Imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus and sex selection was found. Finally, a complaint under Section 18(1) punishable under Section 23(1) and Section 25 of the PNDT Act was filed against the petitioner by the State of Punjab through Dr. R.P. Mittal, District Appropriate Authority-cum-Civil Surgeon, Moga on 11.3.2003. The complaint having been filed by a public servant in discharge of his official duty, the recording of preliminary evidence was dispensed with and an order was passed by the Judicial Magistrate 1st Class, Moga on 11.3.2003, whereby the petitioner was summoned under Sections 23(1) and 25 of the PNDT Act. The petitioner challenged the summoning order by filing an application under Section 245 Cr.P.C. The application of the petitioner was accepted and vide order dated 9.7.2003, the Magistrate discharged the petitioner. The petitioner challenged the summoning order by filing an application under Section 245 Cr.P.C. The application of the petitioner was accepted and vide order dated 9.7.2003, the Magistrate discharged the petitioner. While passing the order, the Magistrate relied upon the fact that no ultra sound machine was recovered from the accused. Further that in the absence of any ultra sound machine, it would be mis-conceived to hold that the accused was running the Ultra Sound Centre without the permission of the appropriate authority. The relevant concluding portion or the aforementioned order is quoted herein below:- “From the bare perusal of the Section 18 of the amended PNDT Act, it is clear that the necessary ingredients of the Section is that there must be Ultra Sound Machine or Imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus and sex selection. But as per the own case of the complainant it has been stated in annexure F at the time of the opening of the seal of the hospital on 6.3 .2003 ultra sound machine was not recovered from the sealed premises. It is also not the case of the complainant that there was some other technology vide which they can undertake the determination of the sex of foetus. The learned AAP for the state contended that it is pre-mature to release the accused as no evidence has been recorded in the case. This argument of the learned AAP for the State has not impressed me in view of the fact that as per the own case of the complainant no ultra sound machine was recovered from the accused. Once the necessary ingredients in order to constitute the offence is missing no useful purpose would be served by examining the witnesses. Moreover, the complainant has not denied the annexure F. Therefore, in the absence of any ultra sound machine it would be misconceived to hold that the accused was running the Ultra Sound Centre without the permission of the appropriate authority. Therefore, in view of the discussion made above, the application moved by accused is accepted and the accused is ordered to be discharged and complaint of complainant is ordered to be dismissed. File be consigned.” 3. The order passed by the Magistrate while discharging the petitioner was challenged by way of revision. Therefore, in view of the discussion made above, the application moved by accused is accepted and the accused is ordered to be discharged and complaint of complainant is ordered to be dismissed. File be consigned.” 3. The order passed by the Magistrate while discharging the petitioner was challenged by way of revision. In fact two separate revisions were filed, one by Punjab State through Dr. R.P. Mittal while the other by the Punjab State itself, which were submitted through Public Prosecutor. Both the revisions was heard by Additional Sessions Judge, Moga. Criminal Revision No. 37, filed by the Punjab State through Public Prosecutor was allowed. Order of the trial Court dated 9.7.2003 was set aside. The trial Court was directed to proceed with the trial of the accused. The other revision i.e. Criminal Revision No. 27 filed by the Punjab State through Dr. R.P. Mittal, was also disposed of, accordingly. The aforementioned order passed by Additional Sessions Judge, Moga on 17.5.2005 is tagged as Annexure P. 7. The petitioner is seeking quashing of the complaint Annexure P.1 and also of the order Annexure P.7. 4. It is clear from the averments made in the complaint P.1 that when the shop, belonging to the petitioner, situated at Baghapurana was opened on 6.3.2003, one board displaying “Prenatal tests are not done here” was found there. Besides, there was one room in front of which “Ultra Sound Scan” was written in Punjabi. There was also a stand for Ultra Sound Machine. A number of photographs, taken at the time of the opening of the shop and the search of the same. were also placed on the record. Finding that the petitioner was operating Ultra Sound Centre without obtaining any permission from the competent authority, the petitioner was sought to be summoned to face the trial. 5. Though it is the admitted case that no ultra sound machine was found at the time of the search of the premises, but that by itself was not sufficient to conclude that the premises were not used for conducting pre-natal tests. Moreover, certain photographs, which were there on the record, is sufficient indication of the fact that the activity of ultra sound scan, for the purpose of pre-natal sex determination, was being carried out by the petitioner from the premises in question. Moreover, certain photographs, which were there on the record, is sufficient indication of the fact that the activity of ultra sound scan, for the purpose of pre-natal sex determination, was being carried out by the petitioner from the premises in question. Additional Sessions Judge, Moga in para 11 of his order has given the details of the place, as was clear from the photographs brought on record. Relevant portion of the order is reproduced herein below: “At this moment such photographs are taken into consideration for applying mind as to whether prima facie case is made out or not for summoning accused(r) Annexure-B contains ten photographs. Such photographs are showing what was written outside the hospital of the accused. Relevant contents of such photographs are: (i) “Goel Hospital & Scan Centre, Dr. Ramesh Lal Goel (MD).” (ii) Big Hospital Goel Hospital & Scan Centre, Railway Road, Moga.” (iii) “Ultra Sound Scan”. In Annexure-F there are 11 photographs. In photograph No.2 there is visible a room on which it is written inter-alia “Ultra sound Sean” in such manner which is showing that such room is meant for Ultra Sound Scan machine and other machines for conducting E.C.G. and spirometer. In photograph No.7 a stand is visible meant for placing Ultra Sound Scanner thereon. Photograph No.9 is enlarged photograph of same item. Some slips of hospital of accused with the name of hospital as Goel Hospital & Scan Centre are also available on record. Photograph No.11 is showing a plate whereon it is mentioned in Punjabi which can be translated as “Pre Natal Sex Determination Test is not conducted here”. From such displaying it is crystal clear that such plate was meant for conveying that sex determination test was not being conducted there though facilities to do so were available, otherwise there was no need to display such plate or declaration. Such displaying of declaration is presupposing that Ultra Sound Scanner was being operated in the hospital of accused without having any registration with complainant. “ 6. It is, thus, clear that prima facie case was made out against the petitioner of having committed offence punishable under Section PNDT Act. 7. The petitioner was initially summoned by the Judicial Magistrate on 11.3.2003. The said order was challenged by the petitioner by filing an application under Section 245 Cr.P.C., which was accepted on 9.7.2003 by the Magistrate. It is, thus, clear that prima facie case was made out against the petitioner of having committed offence punishable under Section PNDT Act. 7. The petitioner was initially summoned by the Judicial Magistrate on 11.3.2003. The said order was challenged by the petitioner by filing an application under Section 245 Cr.P.C., which was accepted on 9.7.2003 by the Magistrate. While reversing the said order of the Magistrate, Additional Sessions Judge relied upon Adalat Prasad Vs. Roop Lal Jindal and others 2004(7) SCC 338 to conclude that once an order of summoning has been passed, the same cannot be reviewed by the same Court under Section 245 Cr.P.C. 8. Learned counsel for the petitioner relied upon Century Spinning & Manufacturing Co. Ltd Vs. State of Maharashtra AIR 1972 Supreme Court 545 to contend that at the stage of framing the charges, the Court should apply its judicial mind for considering whether or not there was a ground for presuming the commission of the offence by the accused. The said judgment is, however, not applicable to the facts and circumstances of the present case as the stage of framing the charges has not yet come. For the time being, the petitioner has been summoned as an accused. At an appropriate stage, the trial Court will take up the case for consideration of charge and at that point of time the said Court would apply its judicial mind for considering as to whether or not there was ground for presuming the commission of the offence by the accused. 9. Counsel for the petitioner also referred to Ramesh Kumar Jain and others Vs. Sanmati Vimal Jain Public School, Jagraon 2005(3) RCR (Criminal) 981. On its basis, it is submitted that at any earlier stage, before the recording of complete evidence, the Magistrate can come to the conclusion that the charge was baseless or transparently false warranting the discharge of the accused. It was also held in the said judgment that the decision of the Supreme Court in Adalat Prasad (supra) did not limit the power of the Magistrate under Section 245 Cr.P.C. to discharge the accused at any stage as in the said judgment, reference was only to Section 204 Cr.P.C. under which there was no power of recalling the summoning order by the Magistrate as it would amount to review. Though in Adalat Prasad (supra) there was no reference to the provisions under Section 245 Cr.P.C. but it was clearly observed that after the Magistrate had taken cognizance of an offence and issued process, the aggrieved accused can only obtain the relief by resorting to Section 482 Cr.P.C. Once the complaint has not been dismissed under Section 203 Cr.P.C., when the Magistrate is of opinion that there is sufficient ground for proceeding, the next step is taken by the said Court under Section 204 Cr.P.C. After the process is issued, no resort can be made to the powers of the Magistrate under Section 203 Cr.P.C. to dismiss the complaint. At the most, only power under Section 245 Cr.P.C. could be exercised but that has been held, though impliedly, in Adalat Prasad (supra). to be not permissible as it would amount to the review which was not permitted under the Criminal Procedure Code. Hence, it was held that the remedy lay in invoking Section 482 of the Code. 10. In view of the above, application under Section 245 Cr.P.C. could not be filed by the petitioner for seeking his discharge after he had been summoned by the Magistrate. 11. For the fore-going reasons, I find no merit in the present petition. The same is hereby dismissed. 12. Before parting with this judgment, it may be observed that any expression on the merits or otherwise of the prosecution case and the defence plea is for the limited purposes of deciding the present petition.