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2013 DIGILAW 629 (BOM)

Kailas s/o. Hiraman Dudhal v. Saraswati w/o. Sudam Munde

2013-03-13

K.U.CHANDIWAL

body2013
JUDGMENT:- Heard extensively. 2. Rule was issued on 13th Sept., 2012, with interim order in terms of prayer clause B of the petition. 3. The short point is: whether the petitioner had authorization and, if yes, whether it was imperative for him to have placed its copy with the complaint petition filed in terms of the Pre-Conception and Pre-Natal Diagnostic (Regulation and Prevention of Misuse) Act, 1994 (for short, PCPNDT Act). Reading the Government notification dated 6th Nov., 2001, and 16th Oct., 2007, it is vivid that the petitioner, a Medical Superintendent, is within the bracket of "appropriate authority" under the said Act. The learned Additional Sessions Judge did not recognize such authority extended to the petitioner oblivious to the fact that he himself had, on earlier occasion, entertained bail application No.247/2011 arising out of the same crime in which, in para no.15 he recorded: "15. Of course, at this stage there is no dispute now remains that Dr. Kailas Dhumal, Medical Superintendent, Sub District Hospital, Parli-Vaijnath, has a power to file a private complaint case under the P.C. & P.N.D.T. Act, 2003, because during the course of arguments Mr. Kulkarni has produced a Government notification to that effect. ..." This order is dated 27.7.2011, while the impugned order is dated 17.4.2012. 4. Now, the canvass projected by Mr. Paranjape that, for want of annexing such authorization, the learned Judge could not take cognizance, needs to be taken into consideration. The learned Judge has evaluated the complaint petition as a whole. The status of the petitioner as Medical Superintendent was not in controversy. He is a Government servant and has categorically stated in para no. 1 about such status. Para no. 2 deals with learned Sub Divisional Officer Mr. Rajesh Joshi, Ambejogai, informing or authorizing him to initiate action. These two events, primarily, were sufficient for the learned Judge to take cognizance of the matter. At the threshold, it was not imperative either for the accused to insist for such authorization letter as it is a matter of proof which can be, if challenged, produced during trial. The legal position, was explained about such authorization or sanction by the Apex Court in the matter of Dinesh Kumar vs. Chairman, Airport Authority of India & Anr. ( AIR 2012 SC 858 ) : [2012 ALL MR (Cri) 321 (S.C.)]. It was a matter under Prevention of Corruption Act, 1988. The legal position, was explained about such authorization or sanction by the Apex Court in the matter of Dinesh Kumar vs. Chairman, Airport Authority of India & Anr. ( AIR 2012 SC 858 ) : [2012 ALL MR (Cri) 321 (S.C.)]. It was a matter under Prevention of Corruption Act, 1988. The sanction to prosecute and its validity was questioned. The Apex Court has observed, since cognizance has already been taken against said appellant by the trial Judge, the question of validity of sanction is open for consideration by the trial Judge, and giving liberty to the appellant to raise that issue during trial. Though these observations are under the provisions of Prevention of Corruption Act, 1988, the principle is the same; it need not be further castigated and dissected. 5. The order impugned in this petition of the learned Additional Sessions Judge, in the fact situation, calls for interference. It is set aside. This Court has not expressed any opinion on merits in the complaint filed under P.C.P.N.D.T. Act. Rule made absolute. Both the parties to appear before the learned Judicial Magistrate, First Class, Parali Vaijnath, on 2nd April, 2013. No separate notice. Ordered accordingly.