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Rajasthan High Court · body

2014 DIGILAW 1993 (RAJ)

Ashish Singhal v. State of Rajasthan

2014-12-04

M.N.BHANDARI

body2014
ORDER By this Criminal Misc. Petition, a challenge is made to the order dated 19th January, 2013 framing charges so as the order dated 28th June, 2013, dismissing the revision petition filed by the petitioner. Learned counsel submits that inspection so as the filing of complaint is not by the appropriate authority, thus was not maintainable. As per Section 17(4)(c) of Pre-conceptional & Prenatal Diagnostic Techniques Act, 1994 (for short “Act of 1994”), an inspection and complaint can be filed only by the appropriate authority. In the instant case, the inspection was caused by an officer/committee and even complaint was filed thereupon by the officer, who was not having required qualification as provided under Section 17 of the Act of 1994. In view of above, framing of charges against the petitioner for offence under Section 17 of the Act of 1994 is illegal. The petitioner deserves to be discharged. Learned counsel further submits that allegation against the petitioner was for not filling form “F”, however, it is in ignorance of the fact that form “F” is not required to be filled immediately on the day of diagnose but can be filled on or before 05th of the month, when it is to be submitted. A reference of judgment of Bombay High Court in the case of Dr. Tushar Rangrao Patil vs. Appropriate Authority, Nanded & Additional Collector, Nandedin, Criminal Writ Petition No. 406 of 2011 decided on 02nd May, 2012 has been given wherein the same issue was considered and decided. In the light of the judgment aforesaid also, lapse in filing form “F” cannot make out a case for framing of charges for the offence under the Act of 1994. Thus, the impugned order deserves to be set aside. Lastly, learned counsel for the petitioner submitted that when the provision mandates for the procedure to be taken in a particular manner, it cannot be ignored and if procedure is violated, the Court should interfere. A reference of judgment in the case of State of U.P. vs. Singhara Singh & Others, AIR 1964 SC 358 has also been given. I have considered the submissions made by learned counsel and scanned the matter carefully. The first argument of learned counsel is in reference to Section 17 of the Act of 1994, thus it would be gainful to quote the aforesaid provision: “17. I have considered the submissions made by learned counsel and scanned the matter carefully. The first argument of learned counsel is in reference to Section 17 of the Act of 1994, thus it would be gainful to quote the aforesaid provision: “17. Appropriate Authority and Advisory Committee-(1) The Central Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for each of the Union territories for the purposes of this Act. (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. (3) The officers appointed as Appropriate Authorities under subsection (1) or sub-section (2) shall be:- (a) when appointed for the whole of the State or the Union territory, of or above the rank of the Joint Director of Health and Family Welfare; (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. (4) The Appropriate Authority shall have the following functions, namely:- (a) to grant, suspend or cancel registration of a Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic; (b) to enforce standards prescribed for the Genetic Counselling Centre, Genetic Laboratory and Genetic Clinic; (c) to investigate complaints of breach of the provisions of this Act or the rules made thereunder and take immediate action; (d) to seek and consider the advice of the Advisory Committee, constituted under sub-section (5), on application for registration and on complaints for suspension or cancellation of registration. (5) The Central Government or the State Government, as the case may be, shall constitute an Advisory Committee for each Appropriate Authority to aid and advise the Appropriate Authority in the discharge of its functions, and shall appoint one of the members of the Advisory Committee to be its Chairman. (5) The Central Government or the State Government, as the case may be, shall constitute an Advisory Committee for each Appropriate Authority to aid and advise the Appropriate Authority in the discharge of its functions, and shall appoint one of the members of the Advisory Committee to be its Chairman. (6) The Advisory Committee shall consist of— (a) three medical experts from amongst gynaecologists, obstericians, paediatricians and medical geneticists; (b) one legal expert; (c) one officer to represent the department dealing with information and publicity of the State Government or the Union territory, as the case may be; (d) three eminent social workers of whom not less than one shall be from amongst representatives of women's organisations. (7) No person who, in the opinion of the Central Government or the State Government, as the case may be, has been associated with the use or promotion of pre-natal diagnostic technique for determination of sex shall be appointed as a member of the Advisory Committee. (8) The Advisory Committee may meet as and when it thinks fit or on the request of the Appropriate Authority for consideration of any application for registration or any complaint for suspension or cancellation of registration and to give advice thereon: Provided that the period intervening between any two meetings shall not exceed the prescribed period. (9) The terms and conditions subject to which a person may be appointed to the Advisory Committee and the procedure to be followed by such Committee in the discharge of its functions shall be such as may be prescribed. The provision quoted above refers about appropriate authority and Advisory Committee but does not provide that complaint can be filed by it only or that inspection cannot be caused by authorized officer. Learned counsel for the petitioner has referred Clause (c) of Sub-section (4) of Section 17 of the Act of 1994. It talks about investigation on complaint and not the inspection. The petitioner has further failed to refer Section 28 of the Act, which provides for filing of complaint. The provision aforesaid is quoted hereunder for ready reference: “28. Learned counsel for the petitioner has referred Clause (c) of Sub-section (4) of Section 17 of the Act of 1994. It talks about investigation on complaint and not the inspection. The petitioner has further failed to refer Section 28 of the Act, which provides for filing of complaint. The provision aforesaid is quoted hereunder for ready reference: “28. Cognizance of Offence-(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; (b) a person who has given notice of not less than thirty 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 subsection (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.” The perusal of the provision shows as to who can file a complaint and therein, it can be filed by the Appropriate Authority or authorized officer, etc. and it does not mandate that authorized officer should be in possession of the qualification provided for the Appropriate Authority. Para No. 8 of the judgment in the case of State of U.P. (supra) is also quoted hereunder for ready reference: “8. The rule adopted in Taylor vs. Taylor is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in s. 164. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in s. 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of s. 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on magistrates the power to record statements or confessions, by necessary implication, prohibited a magistrate from giving oral evidence of the statements or confessions made to him.” The perusal of the aforesaid para reveals that if a status has conferred a power to do an act and has laid down the method then it should be exercised in the manner provided. In the instant case, Section 28 of the Act of 1994 provides as to who can file complaint. The arguments of learned counsel are contrary to the provision aforesaid, thus judgment referred to above supports the reasoning given by the court/s below. The provision of Act and rules made thereunder provides for authorization to inspect and file complaint. There is no provision that even inspection would be caused only by the appropriate authority. In view of above, the argument that inspection and complaint can be filed only by the appropriate authority, cannot be accepted. Learned counsel for the petitioner even raised an argument regarding lapse in filing form “F”. A reference of judgment of Bombay High Court in the case of Dr. Tushar Rangrao Patil (supra) has been given. Relevant part of the said judgment is quoted hereunder for ready reference: “All that is required to be done before the examination is obtaining consent of the patient concerned. Such consent can be taken on consent-cum-declaration part of the Form “F”. A Doctor should first explain to the patient as to the need of obtaining her or his consent. After that he or she would examine the patient. But the filling up the form “F” can be postponed by a day or two after writing down the relevant information on a piece of paper elsewhere. A Doctor should first explain to the patient as to the need of obtaining her or his consent. After that he or she would examine the patient. But the filling up the form “F” can be postponed by a day or two after writing down the relevant information on a piece of paper elsewhere. Some doctors might follow the practice of getting forms filled up through their clerks or they themselves would fill up the form at the end of the day. Filling up of the form thus is for completing the record of patient who is subjected to test etc. The information that is filled in such form can be written down elsewhere and it can be filled up properly without committing any error in the form finally. This facility to the doctor is available in view of the provisions of sub-rule 8. Doctor would be able to send monthly report only after he completes filling up of the forms of the patient which he examined throughout the month. It is only after completing that chore, he would prepare a report and sent it by 5 day of next month. The expectation of learned A.P.P. that the doctor must fill up the form immediately after examination etc. is rather far fetched and overzealous.” According to the judgment of Bombay High Court, filling of form “F” can be postponed by a day or two after writing down the relevant information on a piece of paper or elsewhere. With the due respect to the judgment aforesaid, in absence of any provision, the Courts is not having competence to provide a procedure, that too, when it goes against the object of Act. The purpose to maintain form “F” is to see that everyone is diagnosed after getting information and recorded in form “F” where patient has to put her signature. It can be done in the presence to the patient and not after a day or two because signature cannot be obtained on blank form “F”. The legislation was brought keeping in mind that based on diagnose, the abortions are taking place, if child girl is diagnosed. In view of the above, I find that if form “F” is not filled, is to considered a commission of offence under the Act of 1994 and the Rules made thereunder. The legislation was brought keeping in mind that based on diagnose, the abortions are taking place, if child girl is diagnosed. In view of the above, I find that if form “F” is not filled, is to considered a commission of offence under the Act of 1994 and the Rules made thereunder. The requirement to sent form “F” by 5th day of every month does not absolve requirement to fill it on the same day. Two things should not be mixed up. One is to fill the form and other requirement to send it on or before the appointed date. Unfortunately, the arguments raised by the learned counsel for the petitioner is nothing but with mixing up two different things, thus cannot be accepted. After considering all the arguments raised by learned counsel for the petitioner, I do not find any merit for challenge to the order passed by the court framing charges and to the order passed by the Revisional Court, refusing to cause interference in the order. It would, further, be necessary to observe that after exhausting the remedy of revision, a petition under Section 482 of Cr. P.C. would not be maintainable except in exceptional cases. It is otherwise considered to be nothing but a second revision petition barred by the provisions of Cr. P.C., I do not find that a case of exceptional nature is made out for causing interference in the order of Revisional Court to entertain this petition under Section 482 of Cr. P.C. thus for all these reasons and finding no merit in this criminal misc. petition, it is dismissed. This disposes of the stay application also.