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2013 DIGILAW 2444 (MAD)

Manimegalai v. State

2013-07-12

K.B.K.VASUKI

body2013
ORDER The petitioner is arrayed as A1 in SC 117 of 2008 on the file of the Chief Judicial Magistrate (Additional Sessions Judge), Krishnagiri and facing trial for the offences under Sections 5(2) r/w Section 25(a) and (b) of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 which was substituted by the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (Act 14 of 2003). 2. The petitioner has come forward with this petition to quash the proceedings initiated against the petitioner for the offences referred to under the aforesaid Act, mainly by questioning the locus standi of the de facto complainant to lodge any complaint and the maintainability of the proceedings on the basis of the police report. The learned senior counsel for the petitioner would, by resorting to Sections 17 and 28 of the Act, seriously argue that any complaint regarding the act constituting the offence under this Act, shall be made by appropriate authority constituted by the State Government and the same shall be by way of private complaint before the Court concerned and no other authority except appropriate authority, shall maintain any complaint except in the manner provided under Section 23 of the Act. 3. For better appreciation of the contention so raised on the side of the petitioner/A1, the relevant provisions of Sections 17(2) and (3) and 28(1) to (3) are to be extracted hereunder : Sections 17(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. 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. (3) The officers appointed as Appropriate Authorities under sub-section (1) or sub-section (2) shall be, ((a) when appointed for the whole of the State or the Union territory consisting of the following three members (i) an officer of or above the rank of the joint Director of Health and Family Welfare-Chairperson, (ii) an eminent woman representing women’s organisation; and (iii) an officer of Law Department of the State or the Union territory concerned : 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: Provided further that any vacancy occurring therein shall be filled within three months of the occurrence,) (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. Sections 28. Cognizance of offences (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 authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or (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. Explanation For the purpose of this clause, person includes a social organisation. (2) No Court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. (3) Where a complaint has been made under clause (b) of sub-section (1), 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. 4. (3) Where a complaint has been made under clause (b) of sub-section (1), 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. 4. The combined appreciation of the relevant provisions of law as aforesaid would, as rightly argued by the learned senior counsel for the petitioner, well support the legal contention raised on the side of the petitioner regarding locus standi of the complainant and the manner in which the complaint to be preferred. The statute makes it abundantly clear that the complaint may be made only by the appropriate authority consisting of 3 persons as specified under Section 17(3)(i) to (iii) of the Act authorised by the Government and the same shall be directly preferred before the concerned Judicial Magistrate Court, who shall take cognisance of the same in the manner known to law. Any other person or organisation other than the appropriate authority intended to file any complaint to the Court can do so after 15 days notice to appropriate authority in the manner prescribed under law. The reading of the relevant provision of law would also make it abundantly clear that the complaint shall be directly filed by way of private complaint before the concerned jurisdictional Magistrate either by appropriate authority or any other person after giving statutory notice to appropriate authority of his intention to make complaint to the Court. 5. Whereas, in the present case, the complaint is filed by the Joint Director of Health Services only in that capacity not as the chairperson of appropriate authority authorised by the Government under Section 17(2) and the same is not filed by way of complaint to the police and not by way of private complaint as contemplated under law. 6. Viewing from any angle, the complaint lodged against A1 for the offences under the Act 57/94 is not maintainable and the same vitiates the entire proceedings relating to the offence against A1 is concerned and the same is hence liable to be quashed. 7. In the result, this Criminal Original Petition is allowed thereby the proceedings in S.C. No. 117 of 2008 on the file of Chief Judicial Magistrate (Assistant Sessions Judge) Krishnagiri, stands quashed insofar as the petitioner/A1 is concerned. Petition allowed.